Monday, 30 May 2016

The most dramatic dismissal appeal I've done....

Background:  A union recognition campaign had been successful, and membership was about 70% in a workplace with over 300 workers.  The MD was hostile and had been forced to recruit a professional HR officer.   Janet (not real name) had been a vocal supporter of getting the union in, but was not an activist / rep.  The reps were up in arms because Janet had been sacked.  It was all over the workplace and had caused massive worry and anger.  It was widely believed that the dismissal was retribution for Janet's vocal support for the union.

Before the appeal:  I was met by a Rep and taken to the room where Janet was waiting for me.   Normally this is just between the member and myself.  But there were 12 people in the room!  This room full of staunch union supporters wanted to show support and help Janet prepare her case with me.  I noticed Janet was uncomfortable and quietly asked her if I could ask the others to leave.  But no, she wanted them all the stay.  Shifting uncomfortably, when pressed she said there were no casepapers for me to read.   I hated feeling so ill-prepared, especially as this had become a "must win" case.  Janet shyly explained they had sacked her for being a union supporter,,,and that was that.  I was back patted into the hearing room by the others....

The hearing - part one: I didn't like the unpleasant smile of the HR officer.  The MD stared at the table and did not acknowledge me.  There was a copy of an 80 page dossier in front of us.  I flicked through quickly as the introductions were being done.  I felt sick.  Janet had been lying through her teeth.   Her dismissal was nothing to do with her support of the union.  In fact,the briefest glimpse of the casepapers showed that the dismissal was very justified.  But I had to win!   I called an adjournment.  The HR officers smile broadened and her delight became clear.  She had sussed me out - I'd walked in cold to the meeting - something I hate.  This was not good!

The Facts : Janet had been very, very naughty indeed! Near her desk was a state of the art colour photocopier.  Most days of the week, she would use it to take intimate photographs of various parts of her body. These would then be emailed to her boyfriend.  The messages were explicit, and there was no part of her body that was not pictured in colour within the casepapers.  The returning messages from Janet's boyfriend had also been included,  Let's just say that he had been extremely encouraged by what he had seen, and had said so...

This was all bad enough.   But Janet had gone further.  That MD...the same one I'd seen staring at the table a few minutes ago.....had a right to be angry.  Janet had sent several emails to her boyfriend that were not sexual in content. These ones were about the MD....what a "sleazebag" he he made her skin crawl...what a **** job it was, how boring the work was etc

You name it....Janet had very colourfully complained about it!  I'd been sent out on a high stakes impossible mission....

The Adjournment :  I walked out of the room at pace and kept walking, even though I didn't know where I was. Red faced, full of apologies and tears, Janet struggled to keep up.  She wanted to leave the building and not come back. I twigged what had happened.....she was so embarrassed about the truth coming out....she had concocted a lie and in turn had been made into some sort of martyr.  And now the game was up.

I was not happy, and continued walking at a pace. Over and over I kept telling myself, "You've got to've got to win."

Hang on, what's this?  A framed photo on the wall caused me to stop and ask a question.   The photo was of two identical twins, both wearing very, very little.

"What's this?"
"Oh they're the twins.  They work here."
"What! They work here?!"
"Oh yes, the MD likes to take pictures of them in their underwear..."
"I flippin bet he does...RIGHT!"

Adrenaline kicked in.  I pulled the frame from the wall and began a fast march back towards the hearing room.  I knew what I was going to do.   "Wait", said Janet, "he's also got a framed one on his desk"....

The hearing - part 2: I barged into the room and chucked the picture onto the table.   The HR officer looked worried.

As I started to speak, I dropped the dossier down onto the table.   The papers spread out perfectly - pornographic photos were now strewn across the table.  

"It's crystal  clear that there is a culture of sex and sexual exploitation in this workplace.".  I looked at the MD, who for the first time was now looking at me.
"This culture starts at the very top and goes all the way down through this organisation. You won't worry if I keep this one, I gather you've got your own in your office."

The MD stayed silent but looked at me with a burning hatred.

"This is all looking very, very juicy indeed.  My old mate at the Sunday Mirror would love all could be looking at a full page, maybe even a page and a half spread in this weekends edition."

The HR officer was sunk, her head in her hands.

The MD was on his own, He took a pen out of his suit pocket,
"Mr Coyle....what is it that you want?"

"The lady would like her job back.  She is good at her job and knows she has been very foolish. She tells me she would never let you down again."

The MD called an adjournment of his own,  He returned without his HR colleague.

For the first time he looked at Janet. He never looked at me again.

"Start Monday, and don't let me down".

And with that, I got up and we left the room almost as quickly as we went in.

The aftermath:  Janet was *extremely* grateful, but also *extremely* embarrassed.  I spent over an hour with Janet after the meeting, as I needed to be very persuasive to get her to agree to come back to work.  I pointed out that management were *extremely* unlikely to allow the facts to get out.  She could remain the martyr if she wanted....I told her to reveal no detail of what had just happened...other than to say that the Union were brilliant but she didn't want to talk about it.

I followed this up with a call on the Sunday night to make sure she was going to go into work. She wasn't.  I virtually begged her to go in.

"I want you to walk into work with your head held high.  This will give the workforce confidence in the union and will lift everyone's spirits.  I don't care if you quit the job at lunchtime....but I need you to walk into work tomorrow morning."

She agreed.   Years later, she's still there.

Sunday, 29 May 2016

"living wage" - employers trying it on...

Other than in the Guardian, there is little reporting of the fact that many employers are cutting terms & conditions so that the introduction of the "living wage" doesn't cost them.

The other part of this (largely untold) story is that some employers have backed down after staff resistance.

There are two examples I can give from my East Staffs patch.  Perhaps surprisingly, both are non-union workplaces, albeit that they contain a few Unite members.

Example 1 :  Large GP surgery.

A doctors receptionist contacted me to explain that her rise of 35p per hour has resulted in a consultation that sick pay be reduced and also a reduction in holiday by two days per year.

I helped the member write a letter in response to the consultation.  One of the arguments we used was to worry for the surgery about "potential reputational risk" if the matter became public.  I don't know what impact my little letter had, but the proposal was withdrawn.

Example 2 : Care Home employing 40 care assistants.

Again, the employer wanted to scrap sick pay.  In this case, we argued that this would endanger care. No sick pay could result in care assistants coming to work with bugs / infections that could be passed onto residents.  In this instance,  the employer changed it's proposal so that it became a choice rather than a forced change.  An incentive was provided that improved the proposed new contract.

NOTE:  It is worth pointing out why there are so few examples of these issues happening in unionised workplaces.  The main reason is because collective bargaining generally deliver wages in excess of the legal minimum.

Thursday, 26 May 2016

Burton worker denied funeral leave

This isn't a problem I see very often.

In this instance, the funeral request was for a close friend, not a family member.

The company policy is reasonable enough.  You get paid time off if it's a family member.  For a close friend, it's "management discretion".

Unfortunately, management used it's discretion to say no.

They said that "to agree to this request would open the floodgates to similar requests".   I did chuckle when I heard that....

They also said that as hardly anyone was off on the day of the funeral, he could take holiday.  The man protested he had no annual leave left.  Management said they had made a decision.

I supported the man at his grievance hearing a few days back.

It was clear that the line-manager had not properly understood the policy.  He was afraid that by making a decision / using his discretion, it would set a precedent.  He felt it safest to say no.

During the hearing we pointed out that if holiday was available on that day, then so was unpaid leave for a funeral. We also pointed out that this man had never taken or applied for unpaid or special leave of any type (in over ten years service).

In other words, there was no good reason why discretion was used to decline the request. I added that if management always said no in these circumstances, then they would be in breach of their own policy - as this policy requires a discretionary decision to be made in each instance.  It followed that any refusal for funeral leave should be explained with a very good business reason...

The grievance was held just 48 hours before the funeral.  The funeral was taking place over one-hundred miles away.  Management said it would take them 24 hours to investigate and convey a decision.

It was a close call.....but I'm pleased to say this man did get to the funeral.

I didn't think I did that much at the meeting. So it was good to get a call from him after the decision to thank me.  He said that it was unheard of for management to uphold an appeal in the workplace.  This was not a unionised workforce.  He said that he would never have succeeded without me there.

And that got me thinking.  Even with a relatively small (albeit emotive) issue like this, the imbalance of power between employer and worker is very evident.

Sacked because his shoe laces were undone...

A joke?  I listened in disbelief as Dave explained he'd been sacked for having his shoe laces undone. He'd worked at the factory for twelve years. Many hundreds of workers are employed at this site.

I took a good look at the case-papers.  HR were calling this a "serious breach of health & safety" and "gross misconduct".

Dave was already under a final written warning for a "health & safety breach" earlier in the year.  It was obvious that the earlier warning was ridiculous, but it hadn't been appealed.

The case-papers revealed that Dave walked through a corridor where the floor had recently been mopped. Other workers were doing the same.  There was no sign saying not to use the area. And that was it....there is no more to this story.  So how did this become "gross misconduct"?

In the witness statements (!) a manager wrote:

"I observed Dave with his shoe laces totally untied at precisely 2.43 pm.   I felt this was a blatant and wanton disregard for safety within a hazardous environment.  I felt that Dave was seriously endangering himself and others. I was shocked at this misconduct and immediately reported the incident to HR".

Three other written statement told a similar story. At best, it is highly dubious that each of the four witnesses all noticed the undone shoe laces...

The appeal meeting was very tense. HR were livid with what I said.

Despite aggression, I spoke softly:

"Sometimes a factory can be very, very insular.  Sometimes something can happen in a factory that may seem perfectly reasonable, but to anyone outside looking in would look absolutely outrageous. This is one of those things.

You have sacked a family man because his shoe laces came undone.   This is newsworthy.  You could be looking at national media coverage.  This is so laughable it has resulted in risk to the business."

I'd have loved to have forced a full reinstatement, but understandably Dave didn't want to go back.

A settlement agreement was the obvious solution, and Dave is happy with the compensation that's been negotiated for him.

Settlement agreements are tied up with confidentiality clauses.  So although lots of outrageous things happen that Unions resolve, it's rare that details can be made public.

On the plus side, I am confident this employer will not dismiss again for this reason anytime soon!

Sunday, 22 May 2016

Being paid for overtime has been banned in a Burton warehouse!

There are many, many warehouses in the Burton area.  Some very strange and dodgy things happen in the sites that don't recognise Unite.....

Two weeks ago I took a call from a worker who told me about a quite extraordinary announcement.

"Due to budget constraints. the business is no longer able to pay for overtime worked.  Overtime will continue to be required.  We are pleased to be able to offer TOIL (time off in lieu) for overtime worked."

I laughed.  This was a new one!

Because of fear, none of the workers had dared complain - apart from the one person that rang me. This worker needed the issue sorting as she worked regular overtime.  She was also concerned she had made herself some sort of target for speaking out.

I wrote a letter of grievance for her.

She hasn't had a a reply, and I suspect she won't get one.

But three days after putting the grievance in,  management issued a further statement to all staff, The new line confirms that overtime will continue to be paid.  The memo suggests that some workers had misunderstood it's previous notice!

The extent to which dodgy employers will try it on never ceases to amaze me.

Saturday, 21 May 2016

I just love it when employers forget they have suspended somebody!

It happens.  I've dealt with this four or five times during recent years.

The first time I experienced it remains my favourite!  Most workers don't enjoy being suspended, but this man loved it....

A 72 year old security guard was invited to a dismissal meeting for threatening a colleague in the car park after work.  It didn't look good.

I learned that the man he threatened had been calling him "tick Irish b*****d".

A grievance was raised complaining of discrimination.  We argued that as the grievance was linked to the disciplinary, natural justice dictates that the dismissal hearing must wait until the matter was investigated and heard.

It took the employer months to investigate.  A number of investigation meetings were held, at which we provided additional details that also required investigating.

To cut a long story short.....there were no meetings after the first nine months.

After twelve months, we guessed we'd been forgotten about.  My member took a full time job with a different employer.  Of course, he remained suspended on full pay!

In total, this man was suspended for a total of twenty-nine months before the employer noticed that they'd forgotten him! Of course, that meant he received two full time salaries for seventeen months!  The guy would regularly ring me, brimming with delight, joking that he was the best paid security guard in the country.

When they did eventually call us in, the senior manager was angry. As he spoke, he became more and more angry. The angrier he got, the funnier I thought everything was. My body was shaking as I tried to suppress loud laughter.

"The guy you threatened doesn't work here anymore, and besides, we've left it too long to do the disciplinary hearing.  We are left with no option but to uphold your grievance and get you back to work from next Monday. This is not our finest hour."

Then he looked at me, "Now you......get to hell out of here.  I hope I never see you again."

I giggled some more.  My shaking hands were covering my face by this point,

"DOOR!" he yelled. He was pointing to the door.

The pair of us shuffled out and laughed our way to the pub.

I haven't named the employer.  After all, I wouldn't want to cause G4S any embarrassment.

Wednesday, 18 May 2016

Outsourcing has failed - Unions are winning the argument

There's no denying the misery caused by contracting out.

In that particular case, the "service provider" will be punished by "the client" and is to lose the contract.   This means that the workers will get yet another TUPE transfer to yet another employer.

Sow how do these arguments play out?

Unite, "The factory isn't as clean since we contracted out. Look at all the cut corners. Look at the misery they are causing for people."

Employer, "Don't worry, we know. We are getting rid of them as soon as the contract expires"

"So why are you getting rid of them?"

"Because they are rubbish".

"So who invited this rubbish service provider here?"

"Well.....we did."

"So why do you think *** will do a better job?"


Most medium to large workplaces have contracted out cleaning.  And because of the cut corners, there may be six or more "don't worry we are getting rid of them" moments in a ten year period.

The only way for "service providers" to make additional profit is to attack terms and conditions for workers, or cut corners. Decent cleaning products may be replaced with cheap and nasty ones etc.

When an employer sneezes, the rest soon catch a cold.   It's time to contract back in the workers and numerous services that have been contracted out.

Contracting out / outsourcing has failed.

Sooner or later, common sense will prevail.

As far as I can tell, there has only been one study into this.  This has found that 70% of senior bosses have had bad experiences of contracting out services such as IT.  The figure of 70% would be higher again if considered from a worker perspective.

Saturday, 14 May 2016

The new pecking orders on our shop floors

Complex new pecking orders have emerged on the shop floors of medium and large workplaces.   

The overwhelming majority of one-million zero-hour workers are doing regular hours in a role that has a permanent need.  If these workers question management or ask for something to be improved, they will not be asked back again.   To unionise is virtually impossible.  Where unions are recognised, use of zero-hour contracts is extremely rare. 

Next up in the pecking order....the agency worker.   Within this class of worker, there are different types.  Most now are "Swedish Derogation" or "pay between assignments". These contracts get around the legal requirement for equal pay with “the perms” after twelve weeks continuous work.

The vast majority of these 1.4 million workers are doing a permanent job.  

The original idea behind Agency contracts was to provide employers with an easy way to increase labour supply during a temporary peak, eg the Christmas period in a retail warehouse.  Nobody has a problem with this.  Employers have totally abused this facility.   They are now used to provide a permanent underclass of worker, with fewer rights.  As with zero hour contracts, getting unionised is extremely difficult, and the reality is that if you complain, you will lose your “placement”.

This 2nd class permanent workforce places downwards pressure on wages.  I regularly meet Agency workers who have been grafting on the same placement for many years - alongside “perms” who earn a lot more.  This is a systematic abuse on a massive scale.   

Unfortunately, a permanent minority Agency workforce is present today in many unionised workplaces. In an increasing number of non-union workforces, the "perms" are a minority compared to the Agency workers.  At the Amazon warehouse in Rugely, there are just 50 perms. The Agency workforce fluctuates between 400 and 1200.

There are now several classes of permanent worker. The lowest class is the worker with less than two years service.  They are lower class perms as they have so few enforceable rights.

I recently came across a decent family man with a “proper job” /  permanent contract.  This man was sacked because the Director didn’t like the way he walked.  There was no legal remedy because this man didn't have enough service to have any legal remedy.  When you are being managed by a bully, two years is a long, long time. This is a great way to ensure that large proportions of a workforce stay in permanent fear.  The two year wait for unfair dismissal rights are a green light for bullies to bully.

Many workplaces now have inferior terms and conditions for new entrants.
Over time. this places downwards pressure upon the the longer established perms. Some employers aggressively "manage out" better paid workers so they can be replaced with a cheaper option.  

The very top of the pile are the highly unionised workers who have resisted the introduction of worse terms for new entrants, and have been strong enough to resist the casualisation of large parts of the workforce.  Resentful bosses tell them how lucky they are. On this point there is equality, as the one thing that unites most workers is that they are regularly told how lucky they are to have a job.

These changes are radical and far reaching, and have spread across the private sector like wildfire since the the introduction of the anti-union laws.  It is the legislative framework and political mood music that allows and encourages these divisive and unpleasant developments.

In practice, only Union members have employment rights. Since the coalition introduced hefty charges for employment tribunals, the number of claims have dropped by 80% . Non-union workers have been priced out of most of the private sector. .  How many workers even know this has just happened?     Very few non-union workers can realistically take a claim to a tribunal. The media
silence on this national disgrace is very disturbing.

I've not mentioned that pensions have been clobbered just about everywhere.  I've not mentioned that overtime at double time is increasingly hard to find, or that sick pay is increasingly rare.  The trend is to regard evening, night and weekend work as ordinary, without the making of additional unsocial payments.  And the nice little things, like going out for a colleagues birthday during the working day, have almost completely died. 

Miserable “business reorganisations” have become a constant management obsession across large swathes of British industry.

So have employers cleverly developed new contracts to meet genuine new “business needs”.  No. They have simply casualised people.  Our media are hopelessly ill-equipped to tell this story. Not even the BBC employs a single industrial correspondant. The escalating impact of the anti-union laws is the great untold story of our times.

But it gets worse. Consider the "contracted out" or "TUPE'd" workers. The employer of these workers is subservient to “the client” employer of the same workplace.
There are the millions of these workers.  They are the security guards, the cleaners, the receptionists, the caterers, the cooks etc

This giant army of workers are treated disgracefully.. They don’t get pay rises. They are individually replaced with Agency or zero-hour workers, so that new miserable pecking orders can develop. This large slice of the population is facing ever growing insecurity and in-work poverty.  

The anti-union laws stop the “core” workers from helping the “TUPE'd” workers.  I regularly despair as I'm given horror stories of how factory cleaners and other contracted out workers are abused.  I never have a week without coming across this.

All Unions want is for the many to be able to support the few.  Until the anti-union laws came in, that's what happened.  If the factory cleaners were shouted at and abused, then the factory shop floor operatives stepped in and helped them.  The management soon realised it was better to be reasonable with the cleaners.

But since the last Tory government, UK workers can only have a trade dispute (ie strike) with their employer.  So “core" workers in a factory have to watch in misery as "non core" friends and family that work with them are abused, shouted at and much worse.   This can be gut-wrenching to watch. Decent people will never get used to it. 

The many defending the few has to be called “secondary action”.   The media make this sound like union workers want strike action at the drop of a hat in support of a distant dispute.  This is a very false portrayal.   Unions have been stripped of the essential tools that are needed to help some of the most vulnerable workers. Unions have a moral responsibility to organise for the restoration of these collective human rights.

The emerging casual labour market in the UK is totally unnecessary. It is causing needless bullying, poverty and reduced taxation revenue. 

So yes, the anti-union laws have weakened workers.  They have allowed a race to the bottom for minority groups of workers, and place downwards wage pressure upon millions of others.

Before the anti-union laws, there were large parts of the private sector that were out of bounds for unions.  Rampant use of casual and zero hour contracts have worsened this appalling situation, For many millions of people, achieving collective bargaining is effectively impossible.

Until that changes, the race to the bottom will continue.

Wednesday, 11 May 2016

Treatment of "TUPE'd" workers is a national disgrace

Steve has worked for 42 years in a factory.

His job is supposedly "non-core".  Along with cleaners, security and catering staff, he was "TUPE'd" across to another employer nine years ago.

He was told not to worry. He'd still have the same job, he'd keep his length of service and pay.  The only thing that would be different would be the name of the employer on the payslip.

Nine years on...there have been four changes of employer for Steve while he has remained in the same job.  Nine years on, and there has been just one pay rise while his "core" colleagues have had eight.   But at least he's had one rise?  Well, even that got messed up. In the end, it took the new employer seven months to implement the rise and get it right.

Back in November, Steve was contractually entitled to receive a long service bonus.  When he checked his pay slip in December, the bonus was there but less had been paid than was due.  Steve was also having trouble taking his holidays.  He still had five days that needed using up before the end of the year.  "Don't worry", said management , "we can't afford to let you take the time, but we will pay you for the five days in January."

This dodgy employer was given notice that it's contract was to be terminated, with a new dodgy employer taking over from 1st January.

This left Steve wondering what would happen with his service underpayment.  He had flagged it up before Christmas, but now he had another new employer.  Having taken advice from Unite, he raised a grievance with both the old and the new employer.

Unfortunately, Steve needed to add his holiday pay issue to the grievance letter, as it was obvious he wasn't going to be getting his money.

The grievance was submitted in the third week of January.   The previous employer did reply in writing and agreed to pay the underpayment, but not the holiday pay,  This was hardly the way Steve wanted his long service payment to be processed after forty years plus! He had hoped for a nice little letter of "thanks" to go with it.  That didn't happen. Wasn't much to want after over 40 years loyal service....

"Shabby" does not do this story justice, but I can think of no better word. All the while this has been going on, all the TUPE'd workers onsite have been having management pressure to sign away contractual benefits (such as long service!).  The Director has even said "we don't recognise TUPE or the Unite Union".

It's now May, and the holiday pay is still not paid.

Shamefully, the current employer has ignored the grievance.  There has been no grievance meeting or acknowledgment that they've received it.  To pressure the employer, I have commenced ACAS early conciliation.  I know that they have instructed a solicitor to speak to ACAS about this situation.  I am sure this will have cost them more than doing the right thing and settling the holiday pay claim (worth little over £300).

I honestly don't want to be involving ACAS or instigating court proceedings.  I just want Steve's employer/s to be reasonable enough to politely meet him if there's a problem, and pay him what they owe him.   I know that Steve doesn't want or need this hassle.

But months later here we are, still battling, still fighting.

We've now pressured the real employer - the one that runs the factory.  It will be pressure from them that settles this matter.  I am confident that Steve will get his money within the next week or so, but I will not regard that as a victory.  Steve's treatment cannot be undone, and between now and retirement, the chances of further problems remain high.

Poor Steve.  His only crime was to be regarded as "non-core" by some manager or other nine years ago. A manager who more than likely has long since left the business. I wish the manager had stayed and witnessed the abject misery his decision caused.

Cleaning services, security and all the other "non-core" factory or business could run without them.  What a shame the welfare of these essential workers is never considered as they are dumped from one dodgy employer to the next.

Steve's problems are not rare.  They're typical of the trouble workers get who've been "contracted out" or "TUPE'd". I deal with them all the time. It's appalling, sad, and wholly avoidable.

The grubby treatment of "TUPE'd" workers is a national disgrace.


Steve has his money.  He's also had enough.  The great effort to resolve this has been embarrassing for him, and he is truly fed up of these "service providers".

He's handed in his notice.  A sad end to a sad saga,

Saturday, 7 May 2016

GP has refused to write a report for an employer

This is rare problem, but not a funny one if it happens to you!

I've been helping a worker on long-term sick, who is hoping to return to work soon on greatly reduced hours.  The idea is that these can be gradually increased.

Of course, few employers will go along with this without seeing medical evidence.  As expected, the employer wrote to the GP, asking pointed questions.

After a few weeks, the worker was asked by HR to go and see the GP "to hurry things along."

The GP appointment did not go well.

"Will you please answer the questions my employer has sent you? I'm being pressured about it."
"Do you really think I have the time to be bothering writing reports for employers?  I'm here to give advice to patients, not employers."

When pressed, the GP made it clear that he had no intention of cooperating with any of this.

There is no legal requirement for a GP or consultant to write a report or answer questions.

The quickest and easiest thing to do is to see another GP.  The new GP, of course, will not be so familiar with the issues but at least will be able to see the medical history.  Another option is to ask the reluctant GP to put the reasons for refusal into writing.

I can see that this problem would even trickier when it's a hospital consultant that is refusing to help. Thankfully, that's not something I've come across...

I've even had a few consultants ring me and ask what I want writing in the report!

Luckily for this worker, the HR department is being reasonable and more time is being allowed without further disciplinary steps being taken.  I'm hoping that the next GP will be more helpful....

Wednesday, 4 May 2016

Ill-health retirement - must the boss ask your GP's opinion?

Too ill to work for months.  "Long-term absence procedure" nearly done....dismissal around the corner.  This 59 yr old man didn't think he'd work again.

HR made a promise:
"We will see if you qualify for ill-health retirement....we will pull out all the stops and get it for you if we possibly can.  If we can't....really sorry but we are going to have to let you go."

The worker thought this sounded fair enough.

Unfortunately, the ill-health retirement report came back saying "NO", and the dismissal came soon after.

This worker didn't contact me until after his dismissal.   As there was no prospect of a return to work, there were no grounds for appeal.

I looked at the file. Where was the report was from his GP or hospital consultant?

Turned out that HR hadn't asked for a report.  The sacked man had never been asked to sign a medical consent form.

My head was spinning.  Was this man's condition covered under the Equalities Act?  This wasn't clear from the man's own description of his physical difficulties.  I could smell a rat.

I took my concerns to the company.  Why had this loyal worker not been asked for the opinion of his specialist consultant surgeon?  How on earth could HR make a decision with respect to ill-health retirement without listening to the views of the health professional that best knows the person? I argued that this was morally wrong.

The honest answers given by HR really surprised me, and I'll ensure I look very closely at this issue in every company where I am the FTO.

It turns out that this has been a deliberate policy for some years.  This company (who employ over 10,000 workers nationwide) never ask for medical consent and never do more than refer to see the company "doctor".   In law, the company medical adviser doesn't need to be a qualified Doctor. All employers have to do is show that they have considered ill-health retirement.  I am now thinking that this is probably very common - as most employers seem to use a third party to consider ill-health retirement. I don't think many employers are "pulling out the stops" to help.

This is a discriminatory policy. Workers with a disability may need special and proper consideration of circumstances so that appropriate adjustments may be considered. Of course, it is also extremely unfair to all workers.  I argued that not only was this dismissal no longer safe, the policy itself was creating an ongoing risk to the business.

I have been able to negotiate a settlement agreement for this particular worker.

Better still, the company have now agreed to change it's policy so that medical consent will always be requested in the future.  This means that where it may help the worker for HR to see the opinion of the GP or other medical specialist, this will happen.  I have never seen a decision to award ill-health retirement without this taking place.

I'm very, very pleased.  It's not often that by helping one worker, you end up changing company policy.

In this instance, workers and employers have a mutual interest for things to be done properly.   Yes, an employer can save time by cutting out bothering to ask for medical consent, but to do so is not only unfair, it creates exposure to risk.  An employer may believe there is no risk as the "company doctor" will advise if the worker is classed as having a disability as defined under the Equalities Act. But often the "company doctor" will hedge bets by saying that it isn't possible to say from the information available.

In other words, taking a proper look at what a workers GP or specialist has to say is best for all.  It delivers the following advantages:

1.  Fairer to the worker.
2.  Suggested workplace adjustments from workers specialist/GP increases likelihood of earlier and/or more successful return to work - benefiting all concerned.
3.  Ill-health retirement decision more likely to be the right one.
4.  Reduces exposure to risk for the employer.
5.  Ensuring routine request for medical consent during long term absence is likely to improve an employers ability to be consistent.

Tuesday, 3 May 2016

Section 44, ERA 1996 - very important!

Any worker has the right to refuse an instruction that they believe will result in injury or harm to themselves or others. This belief must be based on something.

Refusal of a reasonable management request may be viewed as gross misconduct.

To ensure you are protected follow these three simple steps:

1. Ask the person who made the request to show you are copy of the safe working method of working document.

2. Ask for a copy of the risk assessment for the work you are being asked to carry out.

3. Contact your Unite Rep and ask them if you have the right to refuse to carry out the task being requested under section 44 ERA, 1996.

Section 44 is such a useful thing to know.  When an entire workforce knows about it, it seriously increases worker confidence and helps ensure a safer workplace.  Better still, it encourages management to "think union" before they act.

To help increase awareness of section 44, please consider sharing this blog.

Further reading
What if I am victimised for questioning safety?