LTB 469/22 – RMG DISPUTES – CONDUCT CASES TAKEN AGAINST CWU REPS OR MEMBERS AND INTERIM RELIEF

No. 469/22

 

29th November 2022

 

 

Dear Colleagues,

RMG DISPUTES – CONDUCT CASES TAKEN AGAINST CWU REPS OR MEMBERS AND INTERIM RELIEF

It is evident from the number of suspensions that have occurred in relation to the two disputes, that Royal Mail Group are taking an aggressive stance in pursuing conduct cases against CWU Representatives, picket line supervisors and striking members.

The DGS(P) Department has sought legal advice in order to ascertain what protections may be available through interim relief and unfair dismissal claims should dismissals occur and how to apply.  The following provides an illustration of how interim relief can be accessed, the strict timelines involved and how financially it may help Representatives who have been dismissed.

 

  • Interim relief is a remedy available to employees who claim to have been dismissed for one of a number of inadmissible reasons, which includes dismissals for union membership or activities contrary to section 152 TULR(C)A (e.g. dismissals because of actual or proposed union membership, participation in union activities, or the use of union services). It is an emergency interlocutory procedure designed to ensure the preservation of the status quo pending the hearing of the unfair dismissal complaint.

 

The application for interim relief should be referred to on the standard ET1 online or paper-based claim form. A separate application setting out the interim relief sought should be submitted to the ET at the same time that the Form ET1 and Grounds of Complaint are lodged.

 

  • In order to succeed with an interim relief application the employee must:

 

    • comply with the strict mandatory application procedure under S.161 TULR(C)A (see below); and
    • satisfy the tribunal at a special hearing that he or she is “likely to succeed” at the full hearing in showing that the dismissal was for a S.152 reason.

 

  • The EAT’s comments on the “likely to succeed” threshold are that “‘likely’ does not mean simply ‘more likely than not’ but connotes a significantly higher degree of likelihood i.e. ‘something nearer to certainty than mere probability”. This is a higher hurdle than proving an unfair dismissal claim. The tribunal will assess the likelihood of success on the basis of the limited information before it: this is likely to consist of pleadings, witness statements and any documentary evidence disclosed by the date of the interim relief hearing, which should take place quickly after the lodging of the application.

 

  • If the employee satisfies a tribunal that they are “likely to succeed” at a full hearing in showing that the dismissal was because of union membership or activity, then interim relief prevents the dismissal from taking full effect before the hearing. The tribunal may:

 

    • Make a reinstatement or re-engagement order pending the full hearing; or

 

    • If the employer does not agree to reinstatement or re-engagement (or the employee reasonably refuses an offer of reinstatement/reengagement), the tribunal may make a continuation of contract order, which will have the effect of keeping the employee suspended on full pay until the full tribunal hearing. Any payments made under a continuation of contract order are not recoverable by the employer in the event of the employee losing his or her unfair dismissal claim at a final hearing.

 

IMPORTANT – Time Limits

 

Time is of the essence in these cases because the employee must present an application for interim relief, together with the claim form claiming automatic unfair dismissal, by the end of seven days immediately following the effective date of termination. Tribunals have no jurisdiction to extend this time limit for any reason.

 

  • Note that the employee must also produce (within the seven-day time limit) a certificate in writing from an authorised union official stating;

 

    • that on the date of the dismissal the employee was or proposed to become a member of the union, and

 

    • that there appear to be reasonable grounds for supposing that the reason for his dismissal (or, if more than one, the principal reason) was one alleged in the complaint [i.e. he was dismissed because of actual or proposed union membership, participation in union activities, or the use of union services].

 

For the purposes of this certification requirement, “an authorised union official” means an official of the union who is ‘authorised by [the union] to act for the purposes of’ section 161 TUR(C)A 1992. The Acting Deputy General Secretary(P) will provide the appropriate certificate to support any members that have a claim for interim relief.

 

In terms of the involvement of Acas the usual requirement for claimants to have obtained an Acas early conciliation certificate/EC number before lodging a claim does not apply where the employee is also making an application for interim relief (Reg 3(1)(d) Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014). However, practically Acas should be started. Please also note that the Form ET1 must state/confirm that there is an exemption to the usual requirement to providing the Acas Certificate number. There is a specific box on the Form ET1 for the claimant to confirm this.

In terms of the current issues experienced by CWU Reps, interim relief could be a viable option in appropriate cases although the issues will likely revolve around the specific reason for dismissal and whether the prohibited trade union reasons for dismissal under s152 are applicable in each case:

 

IMPORTANT

 

In order to assist Branches and Representatives, please find attached a draft Grounds of Complaint (Appendix 1), Interim Relief Application (Appendix 2) and CWU certificate containing the prescribed information (Appendix 3). The CWU certificate should be forwarded electronically to hford@cwu.org for Andy Furey to sign on a case by case basis prior to the step below.

The Grounds of Complaint should be amended for each claimant as necessary and sent with the Form ET1 to the tribunal. Where possible the application for interim relief/CWU certificate should be sent at the same time, but if this is not possible it should be sent immediately after via email to the correct tribunal office together with the CWU IR certificate. It would be a good idea to attach the Form ET1 and Grounds of Complaint to that email so that the tribunal has all documents in one place.

Postal Executive member Steve Halliwell will act as the contact point for Branch enquiries on behalf of the DGS(P) Department and Branches should urgently consider the use of this process where suitable and alongside the usual ET application.

Any enquiries in relation to the content of this LTB should be addressed to the DGS(P) Department.

Yours sincerely,

 

Andy Furey

Acting Deputy General Secretary (Postal)    

 LTB 469.22 RMG DISPUTES – CONDUCT CASES TAKEN AGAINST CWU REPS OR MEMBERS AND INTERIM RELIEF

LTB 469.22 Appendix 1 LS DRAFT Grounds of Complaint – Unfair Dismissal & Interim Relief

LTB 469.22 Appendix 2 LS DRAFT Application for Interim Relief

LTB 469.22 Appendix 3 LS CWU Interim Relief Certificate