RMG & CWU Collective Agreement – Outcome of the Lord Falconer Review

RMG and CWU agreed as an integral part of the Business Recovery, Transformation & Growth Agreement, a terms of reference (Appendix 7) for Lord Falconer to undertake an Independent Review into all conduct cases submitted by the Union via a consent form arising from the recent national dispute.
Lord Falconer has now reached decisions on the first 26 cases (13 selected by RMG and 13 selected by CWU). The outcome of the first 26 cases is as follows:

21 Royal Mail dismissal decisions were overturned.
3 Royal Mail dismissal decisions were upheld.
2 Royal Mail dismissal cases required further investigation.

Lord Falconer provided his decisions to the national parties and these in turn have been forwarded to the relevant individuals.

In light of the decisions in the first 26 cases and in recognition of the rationale Lord Falconer has applied in his deliberations, RMG and CWU agree the following collective approach to settle all outstanding conduct cases and bring Lord Falconer’s Independent Review to an agreed conclusion.

Following further clarification from Lord Falconer, RMG and CWU have agreed that the 2 cases from the priority 26 initially requiring further investigation, will now instead fall under the full terms of this Collective Agreement.

In reaching this agreement, RMG and CWU have carefully considered Lord Falconer’s decisions and rationale. Additionally, RMG and CWU have also reached this collective agreement based on the overriding principle of reconciliation, alongside the need for all parties to move on from the dispute.
This agreement applies collectively and exceptionally to all the cases associated with the Falconer review, specifically covering the following categories.

Dismissals (125) – the full list of these is set out in Appendix A.
Short of dismissal (67) – the full list of these is set out in Appendix B.

5.1 Dismissals

With the exception of the following:-

– The three cases in the original 26 that Lord Falconer upheld

– Para 5.3(iii) The three cases now in scope, which have been referred back to Lord Falconer for a decision

– Para 5.3(iv) The eight cases referred to Lord Falconer to decide whether or not they are in scope.

All other individuals who were dismissed will be reinstated to their previous unit and where possible role with no loss of pay and benefits or employment rights, from the date of their original RMG dismissal. In these circumstances, their contractual employment will be continuous (it should be noted there are 10 cases identified in paragraph 6 which are required to go through a mediation process before returning to their unit).

The 21 cases that Lord Falconer overturned will have their dismissal/gross misconduct decision commuted down as follows: (1) those cases referred to Lord Falconer by Royal Mail will be reduced down to a suspended dismissal with a 12-month warning (other than the three cases where Lord Falconer upheld dismissal); (2) those cases referred to Lord Falconer by CWU will be reduced down to a serious warning; and (3) those cases where Lord Falconer determined that no sanction would have been appropriate will be treated in line with that finding.
All other reinstated employees will have their gross misconduct and dismissal decision commuted down to a suspended dismissal with a 12-month warning.
For the 21 cases and all other reinstatements, the warnings, serious warnings and suspended dismissals will be applied retrospectively from the date of the individuals’ original outcome decision.
In the spirit of reconciliation and in recognition of the overall length of time from the original precautionary suspension (where applicable), formal charges, decisions and outcome of the review, all serious warnings and suspended dismissals with a warning are now deemed time expired as part of this agreement.
Subject to the decisions reached by Lord Falconer on the three and eight exceptions set out earlier in this paragraph, the terms of this collective agreement will apply to these cases.

As an alternative to reinstatement, all individuals will be given the choice to opt for a financial settlement to leave the business (as set out in paragraph 7).

5.2 Short of Dismissal

All short of dismissal cases will be commuted down by one level in the Royal Mail Conduct Code from the level of sanction they received.
Where an additional penalty of a compulsory transfer had previously applied, this will be rescinded and the relevant employees will be reinstated to their normal office, unless they choose to stay at the office they were transferred to. It should be noted there are 10 cases identified in paragraph 6 which are required to go through a mediation process.
Any warning period that applied as part of the original conduct sanction will be applied retrospectively from the date of the original outcome decision.
In the spirit of reconciliation and in recognition of the overall length of time from the original precautionary suspension (where applicable), formal charges, decisions and outcome of the review, all penalties/warnings are deemed time expired as part of this agreement.

5.3 The 46 cases previously challenged by RMG as not in scope

Since Lord Falconer’s Review commenced there has been a disagreement between RMG and CWU as to whether or not 46 conduct cases fall under the terms and scope of the Independent Review. This issue has now been resolved as set out below.i. Following further discussions, it has been agreed that 38 of the 46 cases are now in scope and therefore included in the review.ii. Of these 38 cases, 35 will be broken down into their relevant categories of dismissals and short of dismissal and will now be dealt with in accordance with paras 5.1 and 5.2 above and also in accordance with the full terms of this collective agreement.iii. Three of the 38 cases now deemed in scope will be referred back to Lord Falconer to make a final decision based on full consideration of submissions from CWU, the case files and the facts of each individual case. Lord Falconer will make his decision on these three cases no later than two weeks from the submissions being received.iv. The remaining eight conduct cases of the original 46 in this category, will be referred to Lord Falconer to make a decision as to whether or not they fall under the scope of the review, based on full consideration of the submissions from CWU, the case files and the facts of each individual case. Lord Falconer will make his determination on whether or not these eight cases fall under the scope of the review, no later than two weeks after the signing of this Collective agreement.v. Any of these eight cases deemed by Lord Falconer to be in scope, will be dealt with in accordance with the full terms of this collective agreement.v1. Any of these eight cases deemed by Lord Falconer to be not in scope, will be subject to a fresh and final internal RMG appeal in line with the Conduct Code collective agreement. Exceptionally RMG will ensure any such cases are dealt with independently of the normal managerial line and the panel of appeal managers. Any such internal appeals will take place no later than 3 weeks following Lord Falconer’s determination.

6. Consideration of other Penalties

There are a total of 10 cases in categories 5.1 and 5.2, where RMG may consider a transfer of the individual who received a conduct penalty may be in the best interests of all parties.

Having considered these cases further, RMG and CWU have now agreed the following approach:

– In recognition that these individuals, relevant managers and other employees involved in these cases, may benefit from additional support, and in conjunction with the approach to reconciliation set out in paragraph 8 below, all employees involved in these cases will be asked, prior to reinstatement to their workplace, to participate in a mutually agreeable mediation process, which will be concluded within three weeks of this agreement being signed.

– RMG and CWU believe this mediation process will support the relevant individuals, managers and other employees, to rebuild relationships and construct the right workplace environment for all those affected as part of the reintegration back into their unit. This approach also reflects Lord Falconer’s view that tensions understandably are often high during the course of an industrial dispute.

– If any legitimate outstanding issues are identified through this mediation process, RMG may want to return to the option of a transfer to another location. In any such exceptional circumstances, CWU reserve their right to challenge this position. If this were flagged up, the signatories of this Agreement will meet to determine a way forward.

– Additionally, there are three units in this category where, in conjunction with mediation, there will be a fresh joint review to support improved Industrial / Employee Relations.

– It should be noted that subject to Lord Falconer’s decisions on referred back cases, (5.3(iii) and 5.3(iv)), there may also be a requirement to apply the mediation process to these cases.

7. A Financial Settlement

In all cases where dismissals have been revoked, employees will be offered the choice of reinstatement, or as an alternative, an ex-gratia lump sum severance financial settlement (on terms agreed between RMG and CWU as part of the resolution of the industrial dispute during 2022) to leave the business, the terms of which are set out below.

The financial settlement will comprise of two elements. All dismissed individuals will be entitled to received Element 1, only individuals choosing to take a financial settlement to leave the business will be entitled to Elements 1 and 2:

(i) Element 1 – All monies owed from the date of the original dismissal notification including the following to be paid on the first available pay date following the signing of the COT3.

Basic pay, including London pay range/RISS, as enhanced by the appropriate pay rises
Pension contributions
The £1,007 and £500 lump sums
Scheduled Attendance (and pre-scheduled overtime in Parcelforce)
Holiday entitlement that would have accrued but was untaken as a consequence of the termination of employment
Christmas supplement and underpin payment (where this had not already been received by any employee in 2022)
A compensation payment reflecting the lost value of RM Shares that were forfeited following dismissal
All assigned/contractual allowances (including Functional Supplements)

(ii) Element 2

An additional ex gratia flat rate compensation payment applicable to all employees in recognition of loss of their loss of office and future earnings
Royal Mail believes this ex gratia payment should be paid free of tax

(iii) Those individuals opting for a financial settlement to leave the business will be asked to waive their right to bring employment tribunal claims (and, where relevant, withdraw any current Employment Tribunal claim) against Royal Mail and will need to sign a “settlement form” (COT3) agreement, in line with normal ACAS protocols.

(iv) With the exception of employees choosing to leave the business, all other employees opting to be part of this collective agreement, will need to withdraw any existing ET claims arising from the dispute, including for unfair dismissal, Trade Union detriment and stoppage of contractual sick pay. All the above individuals will need to sign a COT3 settlement agreement and will be supported in this process, in line with ACAS protocols.

(v) All loss of pay for employees who opt for reinstatement, will be calculated in accordance with the list of payments set out in (i) above.

8. The Approach to Reconciliation

A key principle in reaching this collective agreement and finalising the outcome of the Lord Falconer Independent Review, is that both RMG and CWU agree it’s in everybody’s interest to move forward in the spirit of a positive reconciliation.

To achieve this objective, the parties have agreed the following reconciliation and reintegration process for everybody affected by the Independent Review and this agreement.

A Joint RMG / CWU session will be held for all individuals, managers and employees affected by this agreement, to refresh the understanding of what’s expected on the Royal Mail Conduct Code and Business Standards. This will include guidelines in relation to the use of the respective social media platforms. This will ensure there is future clarity for those that engage in social media.
RMG confirms that going forward the agreed 2015 Conduct Code is the relevant document that will be applied consistently when dealing with any conduct cases, based on the merits of individual cases, whilst always taking into account length of service and the previous conduct records.
It is important that both the CWU and RMG move forward from the dispute and this review. To support this objective both parties have asked ACAS to facilitate a session to assist in identifying and discussing the lessons learned from the Lord Falconer review and the dispute.

9. Timescales for Reinstatement

To take account of the timescales needed to reintegrate those employees who choose to return back into the workplace and to deliver the process of reconciliation on the ground, those employees who choose reinstatement will be placed back onto payroll at the first available opportunity and reintegrated into workplaces (if they do not take a financial settlement) from Monday 27^th Additionally, this will also provide individuals with a reasonable period of time to make their choice on whether to opt for reinstatement or an enhanced compensation package.

10. Conclusion

This collective agreement outlines the process for bringing conclusions to all cases lodged with the Independent Review. The exceptions are the cases referred either back to Lord Falconer or to a fresh internal appeal as laid out in this agreement at 5.3 iii – vi.