#1.Not discrimination but...
#2.Lawyers on wrong side.
#3.Officials on wrong side
#4.Bad service to members.
#5.Fob-off or assessment?
case number:  UKEAT 0134_06_2903 Appeal
No. UKEAT/0134/06 2903
At the Tribunal
On 29 March 2006
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
THE HONOURABLE MR JUSTICE BEAN
MR A HARRIS
MR B M WARMAN
Transcript of Proceedings
© Copyright 2006
MR CARL JERVIS [Unison subscriber and member for 30
years] (The Respondent in person)
4 and 13
Employee brought discrimination claims against employer
TU declined support TU official gave evidence for
respondents ET rejected subsequent discrimination claims
against TU based on refusal of support and the fact of official
giving evidence but upheld claims based on providing witness
statement to employer's solicitors no evidence to show
even prima facie that this was discriminatory TU's appeal
allowed and claims dismissed.
THE HONOURABLE MR JUSTICE BEAN
- This an appeal by the Trade
Union UNISON against a decision of an Employment Tribunal chaired
Andrew Gumbiti-Zimuto, sitting at Watford on 17 November
2005, that they had discriminated on the grounds of both sex
and race against Mr Jervis who is of Afro-Caribbean ethnic origin.
- He began work as a mental health nurse
in March 1972 originally at the Leavesden Hospital and became
a member of what was then COHSE in April 1972. COHSE amalgamated
with NALGO and NUPE in 1993 to form UNISON. In 1995, Mr Jervis
was transferred to the Eric
Shepherd Unit and worked night shifts. During 2001 and 2002,
he raised an objection to the introduction of new shift working
arrangements which culminated in grievance and disciplinary hearings.
regional officer was Lorraine Howlett, his branch secretary
was Sandra Beeton. Ms Howlett was, of course, not employed by
the NHS Trust but Mrs Beeton was.
- In May 2002, Mr Jervis was signed off
sick. On 4 September 2002, he submitted a letter of resignation
which he later sought, unsuccessfully, to retract. His employment
was terminated in early December 2002. Prior to that date he
had taken advice from the Union. Ms Howlett wrote to him on 29
October 2002 saying that:
"If you do feel that you were placed under undue pressure
within that meeting (on 4 September with management) and
that you had no alternative other than to resign, you could bring
a claim under the Employment Tribunal proceedings (sic) for unfair
However I do have to inform
you that, having discussed your case thoroughly with Sandra Beeton,
UNISON could not support any claim that you were to bring with
regard to those issues. As already stated, you do however
have the right to do so without UNISON support, and I have advised
you of the appropriate procedure to follow."
- On 9 December 2002, Mr Jervis
began Employment Tribunal proceedings against the Trust complaining
of unfair constructive dismissal. He was not supported by the
Union but was represented by a solicitor at his own expense.
- On 17 April 2003, the complaint
was amended to include a claim for race discrimination and at
the first day of the subsequent hearing it was re-amended to
include a claim for sex discrimination.
- On 23 July 2003, Mr Jervis
wrote to UNISON asking them to pay the legal costs of his claim
against the Trust. By letter of 13 August they refused. During
August 2003, Ms Howlett was asked by the Trust's solicitors to
provide a witness statement. They had discussions with her and
drew up a draft statement which she declined to sign. On 28 August,
the Employment Tribunal at the request of the Trust's solicitors
issued a witness order requiring Ms Howlett to attend to give
evidence and likewise made a similar order in relation to Mrs
- The hearing took place beginning
on 14 October 2003. Mr Jervis gave evidence on his own behalf.
The Trust called among others, Mrs Beeton and Ms
Howlett to give evidence. The hearing occupied nine sitting
days. The Applicant and the Trust, the Hertfordshire Partnership
NHS Trust, were each represented by counsel; the Tribunal was
chaired by Mr Mahoney.
- By its reserved decision promulgated
on 30 December 2003, the Tribunal upheld Mr Jervis' complaints
of unfair dismissal though with a finding of 40 per cent contributory
fault, and of sex discrimination. The complaint of race discrimination
was dismissed. We do not have the remedies decision but Mr Jervis
has told us that he was subsequently awarded, in round figures,
some £3,000 for unfair dismissal and some £57,000
for sex discrimination, a total of approximately £60,000.
- He had, however, incurred
substantial legal costs in establishing that case and wrote to
UNISON on 11 February 2004 and again on 9 September 2004, complaining
of its refusal to pay his costs. On 11 January 2005, he began
proceedings in the Tribunal against UNISON alleging sex and race
discrimination. In Box 11 of the Originating Application he gave
details of his complaint as follows:
"When my former employer Hertfordshire Partnership
NHS Trust tried to change our shift pattern I was treated less
favourably by UNISON compared to the way UNISON treated my colleagues
who are female and white.
I consider that I have been treated very badly by UNISON and
request that the Tribunal agrees with me that I was sexually
and racially discriminated against."
- As Mr
Antony White, QC who has appeared before us for UNISON has
pointed out, those brief grounds appear to relate entirely to
alleged less favourable treatment while Mr Jervis was employed
by the Trust rather than subsequently to the termination of his
employment. It alleged in other words a failure of representation
in dealings with the former employer rather than of representation
before the Tribunal.
- On 15 February 2005, UNISON
responded to the claim; denying discrimination and also making
the point that the claims were out of time. The issue of whether
the claims were out of time came before Mr Gumbiti-Zimuto, sitting
alone, on 2 June 2005. The learned Chairman ruled that Mr Jervis'
complaints relating to events prior to the termination of employment
in December 2002 were out of time. He refused to exercise his
discretion under the "just and equitable" sections
of the discrimination statutes to extend time.
- However, the Originating
Application was not, by this time, the sole basis of the complaint.
The Chairman's judgment at paragraph 5 says this:
"The second category of complaints which the claimant
makes is that the Union failed to support him during the period
when he brought his claim to the Employment Tribunal.
He says that he requested assistance with his legal costs in
about July 2003 and sometime thereafter the Union refused.
The Claimant stated that after he received the liability decision
in his favour, that he revised his complaint and subsequently
that decision to refuse him legal assistance was either re-affirmed
or another decision to the same effect was made."
- As to the complaint of lack
of support from UNISON in relation to the Employment Tribunal
claim made by Mr Jervis against the NHS Trust the Chairman held,
as was plainly the case, that those complaints too were out of
time but held that it was just and equitable for time to be extended
so that the Tribunal could consider them. He directed Mr Jervis
to provide an Amended Originating Application particularising
his complaints that UNISON failed to provide him with support
in his proceedings against the Trust.
- Mr Jervis provided an Amended
Originating Application on 6 June 2005. It is a handwritten document
running to 25 paragraphs. Most of them, unfortunately, related
to Mr Jervis' treatment prior to December 2002 which the Chairman
had ruled was out of time. However, paragraph 21 begins:
"At the full merits hearing in October/November 03
Beeton (UNISON Branch Secretary) and Lorraine Howlett (UNISON
Regional Officer) gave evidence on behalf of my ex employer,
Hertfordshire Partnership NHS Trust."
- At paragraph 25 the document
"UNISON have breached their own policy
regarding the aims and objects of the Union. See extract
from UNISON Rules Booklet (Aims and Objects of the Union)."
- The relevant part of the
Union Rule Book is in our papers. The arguably relevant sections
of the Aims and Objects of the Union as set out in the rule book
"B1.2 to seek to ensure equality of treatment
and fair presentation for all members and to work for the elimination
of discrimination on grounds of race, gender, sexuality, disability,
age or creed.
B1.3 to seek to protect the rights of all members to be
treated with dignity and respect irrespective of race, gender,
sexuality, disability, age or creed.
B3.1 to provide minimum guaranteed standards of advice,
representation and service (to members)."
- Mr Jervis' Amended Originating
Application was met with amended grounds of resistance which
began by noting, we believe correctly, that the Chairman's order
of 2 June 2005 had limited the issues for determination by the
Tribunal at the forthcoming substantive hearing to the following:
"Did the Respondent treat the Claimant less favourably
on the grounds of race and/or sex contrary to section 11 of the
Race Relations Act 1976 or section 12 of the Sex Discrimination
Act 1975 by failing to support him (financially or otherwise)
in his litigation against his former employer the Hertfordshire
Partnership NHS Trust from the date that he brought proceedings
to the time they concluded in or around June 2004?"
- When Mr Jervis, who was
then and is now appearing in person, served his witness statement
in the Tribunal proceedings against UNISON, he did so by adapting
the document originally filed as an Amended Originating Application,
giving it a new heading suitable to a statement rather than a
pleading; then setting out the 25 previous paragraphs with some
helpful page references; and adding at the end, after the allegation
that UNISON had breached their policy regarding the aims and
objects of the Union, some references to letters and file notes
which were said to support the case.
- Ms Howlett provided two
witness statements to be adduced on behalf of UNISON in the proceedings:
the first a very short narrative dated 28 July 2005, the second
and rather longer one dated 10 August 2005. Mr Jervis also submitted
a supplemental witness statement in response to Ms Howlett's
first statement complaining that he did not receive any support
from Ms Beeton, nor from Ms Howlett. He complained that when
he asked Ms Howlett what he could do, she said that Mr Trewin
(that is the relevant line manager) did everything right and
that he must try not to get up management's nose. He made a complaint
that she had not informed the Trust that his previous shift pattern
was a term of his contract of employment and that the attempted
variation of that term was potentially a fundamental breach.
He complained further that she had not advised him to raise a
grievance against his employer. All these were complaints of
pre-termination matters which had been ruled out of time. At
the end of the witness statement he said:
"Lorraine Howlett never advised me regarding my legal
- The hearing before the Employment
Tribunal took place on 10 and 11 October 2005. We have been provided
without objection with an attendance note compiled by Ms Shabana
Mahmood, solicitor of Berrymans
Lace & Mawer who were acting for UNISON which records
in considerable detail her note of what was said and done. It
has therefore been unnecessary to trouble the learned Chairman.
(There is also a manuscript note by Ms
Misra, of counsel, who represented the Union. Naturally,
since Ms Misra was on her feet for part of the time, this is
less full and it is no disrespect to her to say that we have
not been referred to it.)
- Ms Mahmood's note shows
that at the very outset of the hearing, Ms Misra raised her concern
that the large volume of documentation before the Tribunal
included what she described as a lot of irrelevant material.
The vast majority of the documents, she said, related to matters
which were no longer live issues before the Tribunal following
the Chairman's interlocutory decision to refuse to extend time
in respect of the December 2002 issues [because the union member
had had to study law in three months while off sick after a career
in night-shift nursing. You'd think a lawyer would be ashamed
to say something like this but apparently it went down OK]
- The hearing proceeded. Mr
Jervis read out his witness statement and was then asked questions
in the nature of evidence in chief by the Chairman. In Ms Mahmood's
note at paragraphs 12 to 16, we find these questions by the Chairman
and answers by Mr Jervis.
"12. What other support did you ask UNISON
for other than legal costs?
A. Support all the way. I was entitled to support
all the way. UNISON are there to provide support for members.
13. What is it you expected?
A. They could have stressed the points in my favour.
They were able to carry on and represent me at the employment
tribunal hearing. They did not support my case and so
I had to get solicitors of my own. UNISON should have
been the ones supporting me.
14. Once you decided to start the case, how do you say
there was a lack of support from the Union?
A. I thought they could have pressed my employer and maybe
try to get me some more family support my wife is also an employee
and a member of UNISON.
15. Did you receive help in the conduct of your case?
Such as someone to talk to?
A. No they didn't help me conduct the case. I had
to instruct my own solicitor because they would not support me
and give me legal representation.
16. Did you ask?
A. No they knew all about it. They never even advised
me, you know, that I could raise a grievance."
- After cross-examination
by Ms Misra and a few final questions from the Tribunal, the
Claimant's case concluded and Ms Howlett then gave evidence.
She was cross-examined first by Mr Jervis and at paragraph 23
of this section of the Notes the following exchanges occurred
(the passage in square brackets is Ms Mahmood's):
Why did you and Sandra Beeton give evidence at my tribunal
A. I was witness ordered and wasn't given a choice, once
you have a witness order you have to attend, and the same is
true for Sandra Beeton.
Chairman reference to bundle and letters from Gemma Webb.
Chairman: Why were you in communication with the Trust?
A. Well, in one sense I am always in communication with
the Trust because I sit on a group which reviews their policies.
So we are always reviewing their internal policies to make sure
that they are not breaching employment regulations. Oh
sorry, I misunderstood -in relation to this case and Mr Jervis,
I was not in communication with the Trust. They approached
me to give evidence and I refused and said I would not give evidence
without a witness order.
Chairman Basically you went behind your member's back.
I mean that would obviously make him feel bad wouldn't it? You
simply went behind your member's back and helped out his former
employer? [What is that being based on? Raise with EM -inappropriate
tone and questioning of Lorraine -not raised by Mr Jervis].
A. I did not go behind Carl's back. At page 338
I had said that I was not appearing as a witness without an order
I was not doing it voluntarily. I wasn't volunteering
my information or my views or my assessment of the case and what
I believe was right or wrong I said that I would not do it without
a witness order.
Chairman How often have you appeared for a respondent against
one of your members?
A. Me personally, this is the only time that I can recall."
[I don't believe her: there is another case on Google of Unison
doing this. And why say "that I can recall?"
- In closing submissions both
orally and in writing, Ms Misra sought to emphasize that Mr Jervis
should be limited to the case which he had put.
"Counsel: If the Tribunal finds that he was not supported,
that is in and of itself, not enough. You must find that
he was not supported on the grounds of his race or his sex.
This is not a claim that the Applicant has seriously put forward
over the course of the hearing.
Chairman: Yes, but in terms of Lorraine Howlett and Sandra Beeton,
I mean, they gave evidence in the Employment Tribunal proceedings.
Counsel: Yes, they did. They were witness ordered.
Chairman: Yes, but it seems as if Lorraine Howlett has tried
to cover her back. To say that she only attended because
of the witness order flies in the face of the documents.
She spoke to Jerry Butler. It seems to me that she was
in discussions with them from the outset and was helping them
and asked for a witness order to cover her back.
Counsel: Lorraine Howlett's evidence on this point was clear
in that she said that she was not going to give evidence unless
a witness order was obtained.
Chairman: Yes. So she was basically covering her back.
Counsel: No, in my submission that is not correct and the Tribunal
has no basis on which to say that. I would remind the
Tribunal that the Applicant has not challenged that aspect on
the grounds of race or sex. It is remarkable that he simply
has not put forward a positive allegation of race or sex discrimination.
Chairman: Well, the critical point is what leads up to the evidence.
It seems to me an important feature there was never any attempt
to contact Mr Jervis regarding his perception of the degree of
co-operation between Lorraine Howlett and the Trust. It
seems that there was a degree of co-operation beyond simply turning
up and giving evidence." There were further exchanges
in the same vein.
- In its reserved decision
which followed a discussion in Chambers on 25 October, the Tribunal
found in Mr Jervis' favour on both sex and race discrimination.
In paragraph 4 they said:
"The issues that the Tribunal has had to consider
are whether the Respondent discriminated against the Claimant
on the grounds of sex or race by failing to provide him with
representational assistance in the bringing of his claim made
against the Trust; whether the Respondent discriminated against
the Claimant on the grounds of his race or sex when it declined
to pay the Claimant's legal expenses; and whether the Respondent
discriminated against the Claimant in that they were in breach
of its (sic) own policy regarding the aims and objects of the
Union in that they failed "to provide minimum guaranteed
standards of advice, representation and service" to the
- In their findings of fact
they rejected, as they were entitled to do, the evidence of Ms
Howlett that she was not willing to support the Trust against
the Claimant or willing to give evidence for the Trust. They
noted that this was the only occasion of which Ms Howlett could
give evidence where a regional officer had given evidence for
the employer against the Union member in a Tribunal.
- After referring to the Race
Relations Act and Sex Discrimination Act and the decision
of the Court of Appeal in Igen
v Wong  ICR 931 they confirmed in paragraph
"In this case there was no actual like for like comparator,
it was necessary therefore for the Tribunal to construct a hypothetical
comparator. In this case the key characteristics of our
hypothetical comparator is that they are a person of a different
race and sex to the claimant who has tendered their resignation,
sought to withdraw it and then sought support of the union representatives
as the claimant did."
- They then went on to deal
with the issues one by one. Firstly in paragraph 8 they said:
"When considering the question whether by failing
to provide the Claimant with representation or assistance in
the bringing of his claim made against the Trust, the Respondent
acted unlawfully the Tribunal is satisfied that the Respondent
did not. When looking at the decision not to assist the
Claimant the Tribunal consider that the actions of Lorraine Howlett,
would have been the same to any type of hypothetical comparator.
Lorraine Howlett's actions were due to her view that the Claimant's
case had no merit. There is nothing to suggest that the
view she took of the merits was tainted by considerations of
the Claimant's sex or race. In this part of the Claimant's
case the Tribunal consider that the Claimant has failed to prove
such facts so as to require the Respondent to provide an explanation
for their actions."
- They went on to find:
"In relation to the issue whether the Respondent discriminated
against the Claimant on the grounds of his race or sex when it
declined to pay the Claimant's legal expenses we are satisfied
that it did not."
- In paragraph 11 they went
on to the third and final head of claim, which was a complaint
Lorraine Howlett and Sandra Beeton did not
support the Claimant's case against the Trust but instead assisted
the Trust and gave evidence for the Trust at the hearing."
- They said:
"The Tribunal has firstly considered whether the Claimant's
complaint is within the scope of sections 12 of the 1975 Act
and 11 of the 1976 Act. The Tribunal consider that any
complaint about Lorraine Howlett and Sandra Beeton giving evidence
for the Trust is outside the scope of sections 12 and 11 of the
1975 and 1976 Acts respectively. The union officials both
gave evidence pursuant to a witness order and the Tribunal do
not consider that giving evidence to an Employment Tribunal pursuant
to a witness order is capable of being an act of discrimination
within section 12(3) or section 11(3) of the 1975 and 1976 Acts
- At paragraph 12 they said:
"In the case of Lorraine Howlett it is clear that
her conduct went beyond merely giving evidence but also amounted
to supporting the Trust in the preparation of their case against
the Claimant. We have considered the Union's aims and
objects that contain a provision that the Claimant is entitled
to "minimum guaranteed standards of advice, representation
- After setting out section
12(3) of the Sex Discrimination Act and section 11 of the Race
Relations Act, the Tribunal continued:
"15. The Tribunal is satisfied that by giving
support to the Trust in the preparation of their case the Claimant
has been subject to a detriment. Lorraine Howlett
gave information which supported the Respondent's case and
assisted them in the preparation of their case against him.
Lorraine Howlett's only involvement in the case comes from her
representation of the Claimant. In not informing the
Claimant of her involvement in the case Lorraine Howlett was
in our view failing "to provide minimum guaranteed standards
of advice, representation and service." A
union member in circumstances such as the Claimant in this case
can expect that his union representative will not assist his
employer in the preparation of a case against him even when
the union is not supporting his case. To do so is our
view a breach capable to amounting to a detriment within the
sections 12 and 11 of the 1975 and 1976 Acts respectively.
16. It is not the fact of giving evidence, which was done
subject to a witness order, it was the provision of assistance
to the Trust and the failure to inform the Claimant of her actions
that the Tribunal consider to be the discriminatory act in this
17. The Tribunal has gone on to consider whether the Claimant
has proved facts from which conclusion could be drawn that the
Respondent has treated the Claimant less favourably on the ground
of sex or race. We take into account the fact that Lorraine
Howlett in her evidence stated that she was not aware of any
other case like this, where a union official has given evidence
against the a union member that they had represented.
We have also considered the fact that we expressly reject the
suggestion made by Lorraine Howlett that she did not support
the Trusts case against the Claimant. We have also considered
that when measured against a hypothetical comparator the actions
of Lorraine Howlett would have been to comply with the aims and
objects of the union and provide a minimum guaranteed standard
of advice, representation and service. The Tribunal is
satisfied that having regard to the provisions of both section
63A of the Sex Discrimination act 1976 and section 54A of the
Relations Act 1976 the Claimant has proved facts from which conclusions
could be drawn that the Respondent has treated the Claimant less
favourably on the grounds of sex and or race."
- Mr White's first ground
of appeal is that the Tribunal found against his clients on a
ground which had not been put forward by Mr Jervis. The allegations
which Mr Jervis had made, of failure to support his Tribunal
proceedings by the provision of presentation or assistance, and
the subsequent failure to pay the legal fees which he had occurred,
were rejected as allegations of discrimination by the Tribunal.
In contrast, those negative allegations having been rejected,
the Tribunal found UNISON liable on the grounds that Ms Howlett
had inappropriately provided assistance to the Trust, (other
than by the giving of evidence itself, which the Tribunal rightly
found not to be capable of being a detriment), and had compounded
that inappropriate behaviour by the failure to inform the Claimant
of her actions. Those positive allegations, Mr White complains,
were introduced into the proceedings by the Chairman and formed
no part of Mr Jervis' pleaded case.
- In the well-known decision
of Chapman v Simon  IRLR 124 Balcombe LJ,
Gibson LJ and Stuart-Smith LJ held that an employment tribunal
had erred in law in making a finding of race discrimination where
the matters on which the finding was based had not been the subject
of complaint in the Originating Application. Gibson LJ said at
"If the act of which complaint is made is found not
to be proven, it is not for the Tribunal to find another act
of race discrimination of which complaint has not been made to
give a remedy in respect of that other act."
- In another case this time
in this Tribunal, British
Gas Services Ltd v McCaull  IRLR 60, Keene
J, as he then was, giving the judgment of this Tribunal, said:
"If a Tribunal finds less favourable treatment in
some act or omission of which the Applicant has not complained
there is a grave danger that there will have been a breach of
the rules of natural justice because the other party will not
have been put on notice that this might be held against it."
- We respectfully agree with
that and would add that we accept Mr White's submissions that
that danger is accentuated since the new provisions relating
to the burden of proof; the decision of this Tribunal in Barton
v Investec Henderson Crosthwaite Securities  ICR 1205, and, particularly,
the decision of the Court of Appeal in Igen
Ltd v Wong. If a Tribunal makes a finding on the
basis of facts which were not complained of in the originating
application and where the party against whom the finding is made
had had no proper opportunity to respond to the allegations;
then uses that finding to find (under the first
step in Igen
v Wong) that a prima facie case has been made
out; and then goes on, as this Tribunal did, to find that the
Respondents have not advanced adequate evidence to displace the
burden of proof, the potential failure of due process is particularly
- The Tribunal regarded it
as a matter to be held against UNISON that Ms Howlett had not
dealt with this issue in her witness statement. In paragraph
18 of their decision they say:
"In her witness statement, Lorraine Howlett gives no
explanation for her actions."
She was entitled not to do so because the allegation had not
at that stage been made.
- Mr White's second point
is that the Tribunal drew an unsustainable distinction between
the giving of evidence and steps preparatory to the giving of
evidence. As a criticism of paragraphs 15 and 16 of the Tribunal's
decision we think that this short submission is well founded.
But it does not stop there. Mr White's first two points can properly
be combined in this way. The Tribunal found that in not informing
the Claimant of her willingness to testify on behalf of the Trust
and the provision of assistance to the Trust preparatory to the
actual giving of evidence, Ms Howlett had committed a discriminatory
act. But that as we see it could only be the case if Ms Howlett
would have behaved differently had Mr Jervis been white or female
or both. There is in our view nothing in the material before
the Tribunal which would even amount to a prima facie
case that Ms Howlett would have behaved differently in this respect
had the relevant Union member been white or female or both and
the Tribunal make no such finding. In the absence of such a finding
we regret to say that we simply do not see on what basis it could
have been found that these actions by Ms Howlett constituted
prima facie evidence of race or sex discrimination.
- The Tribunal in this case,
so far from making such a finding, had been emphatic in paragraph
"(a) failing to provide the Claimant with representation
or assistance in the bringing of his claim, the Union through
Ms Howlett would have acted the same towards any type of hypothetical
(b) that Lorraine Howlett's actions were due to her view that
the Claimant's case had no merit.; and
(c) that there is nothing to suggest that the view she took
of the merits was tainted by considerations of the Claimant's
sex or race."
- Having made those findings
it would have been quite extraordinary for the Tribunal to have
gone on to find, that had Mr Jervis been white or female or both,
Ms Howlett would have refrained from providing assistance to
the Trust before the Tribunal hearing, or would have kept the
Claimant informed of her communications with the Trust. In fact
they did not do so.
- These conclusions make it
unnecessary for us to consider Mr White's final point which is
that in any event Ms Howlett was not personally a party to the
proceedings and that UNISON could only be found liable for discrimination
by her, whether under section 41 of the Sex Discrimination
Act or section 32 of the Race Relations Act if the
requirements of subsection (2) of each of those sections was
satisfied and that in this case they were not. That raises an
interesting point about the scope of the authority conferred
by the Union on a full-time official. We will not venture to
deal with it in this case.
- Mr Jervis told us at
the outset of his brief and helpful submissions that he had experienced
a great deal of stress and depression as a result of the way
he has been treated and that that stress and depression have
continued. We sympathize with that and, we sympathize
with the fact that he has had to cope with this case, including
the appeal to us, without assistance. Nevertheless,
it seems to us that the law is very clear and that the Tribunal's
decision in his favour cannot be sustained. [underling mine -
- We therefore allow the appeal,
set aside the decision of the Employment Tribunal and dismiss
the Originating Application.
REASON FOR QUOTING THIS
This wasn't discrimination, so Unison treat all their members
as badly as they treated Mr Jervis.
- The tribunal is hearing a case by a union against
its member. This court hears discriminition cases by members
against unions, dispite being called an Employment Appeal Tribunal,
so Unison have persuaded a court to say they treat all their
members as badly as Mr Jervis. They have lost a first case, and,
un-embarrassed, have paid lawyers to appeal. A similar case by
and College Union is listed on the contract-to-members.html
page here in which they argued that members had more-or-less
no rights to help according to their rule book, so cases like
this aren't unique.
To digress, the background is a bunch of staff on the night shift
and another bunch of staff on the day shift who quite likely
get the training, pay, chances of career breaks that Mr Jervis
hasn't taken since 1972. Anyone running an institution ought
I think to mix the shifts a little or find other jobs that nightworkers
are able to do say one month in six. Otherwise a nightworker
who is not good at office work or seen not to be has very little
chance of changing job, even to another job on the same pay,
which might be welcome after years of night time social care.
That's something the union doesn's say it has addressed since
1972 dispite their rep being invited to regular meetings with
management about "procedure" and Mr Jervis was
complaining about some change for the worse when advised by the
union rep "not to get up the mangement's nose" and
rapidly facing something like an unfair dismissal which the union
didn't advise him how to handle. I see nightshift discrimination
here, and if race has to be hauled into it to get a response
then that's fine particularly for the member who has lost a career
and would get the payment from an ex employer. It might pay for
a holiday or an annuity or pension.
The union agrees discrimination against all its members by being
feckless. It has no argument against that.
The court is to decide whether Unison discriminates against all
its members by being a dodgy feckless scam or whether it specifically
targets black ones.
- Unison argued that they were feckless
- The tribunal agreed.
Unison Lawyers are on the wrong side. Lots of them.
"In UNISON, we
recognise that good quality legal services are one of the key
reasons our members join a union."
Mr Jervis is trying to get money out of Unison to pay for
his last court case where they should have helped him, but couldn't
be arsed. Their leaflet linked above seems to miss the
law that insured people can get a solicitor so assess their 50%
chance of success. The law is in favour of the insurer or the
union; claimants have to get assessed by a nominated lawyer before
changing to another, but at least they have a legal right to
see a law society member. Unison don't say that in their
leaflet and they don't provide that. They didn't even provide
a no-win no-fee lawyer, charge the lawyer a referral fee, and
dress this up as help worth a lifetime's membership subsciptions.
The refusal to help was passed to Mr Jervis by memo from a volunteer
who had "spoken to" a paid member of staff,
as though she'd just met the Queen at a garden party and was
chuffed to tell all. In contrast, Unison have now found good
quality legal services for themselves. Berrimans do panel work
for Norwich Union and Norwich Union customers might not get meetings
at the City of London office, a barrester against a defendent-in-person
and then another one for the appeal to be on the safe side. There
are plenty of uncritical statements about Norwich Union on the
firm's web site but nothing about a real union; they don't say
they've done all their legal work for free, paid commission,
subsidised the loss-making employment cases from the personal
injury cases, given free legal training to branch reps and "sponsored
don't look like cheapskate lawyers who have bid to be on a panel
and offer cash-back, free branch training, loss-making employment
law work, and "sponsor events" to get referrals:
the solicitor can afford an office in the City, there's a separate
barrester (who complained at the amount of paperwork - how unjust
is that?) and then by the appeal there are two barristers - the
second one described in Chambers as
"an exceptional advocate able to save a sinking ship"
Union's official and volunteer rep turned-up on the wrong
This was at Mr Jervis' first discrimination case against his
They couldn't help being summoned as a witness, but they didn't
warn Mr Jervis: they went "behind his back". Even if
he had resigned his membership by this point, he had been paying
subscriptions since 1972 and they could have tracked him down.
The official still
works for Unison.
Service to members at work
Unison's human resources work, pre-resignation, was for a volunteer
to advise the member
"not to get up the management's nose."
The management is known to be sneezy, but they also meet a day-shift
union rep regularly to discuss procedures.
Nothing says that Unison's rep tried to make good suggestions
for mixing night and day shifts or put Mr Jervis' suggestion
to the NHS Trust, nor that the union wants to expose sneezy management
and propose alternatives. Unison has never bid to run NHS services.
When changes were made to the shift pattern that Mr Jervis didn't
want to live with, events came to a head.
Unison did not suggest that a shift pattern could have become
part of his contract.
Unison did not suggest that treating a black nightshift worse
than a white day shift might be discrimination.
Unison did not suggest that a grievance letter might be worth
a shot before resigning.
Mr Jervis did get up the management's nose, something happened:
he resigned and then tried to retract his resignation, and began
collecting papers. Unison does not help him make sense of the
papers or advise on whether to resign or not. He has to study
law or find-out about no-win no-fee lawyers while depressed.
Assessment of a member's legal case against an ex employer
The assessmemt system for the Unison member's trubunal case seems
to be for a volunteer to phone an unqualified official and then
pass a memo or an email to the member to say whether he won't
be backed. Unison took decades of expensive subscriptions with
an implied contract attached but didn't even help Jervis prepare
documents when he went ahead anyway, or send an official to represent
him rather than pay for a lawyer, even though the employer's
side would get at least secretarial help and general advice from
their human resources department in a case they didn't want to
back. Just in case Mr Jervis confuses a trade union with a court
(why should anyone be so ignorant as to confuse the two? Did
they think he was a monkey or do they think all their members
are monkeys?) he is told that he can complain to the tribunal
directly. It isn't said that they gave him the tribunal's address
or phone number or url, or lent him a textbook (Amicus has stopped
using proper textbooks anyway and uses Labour Research ones instead),
or took him through detailed reasons not to go to court and of
course they would find this hard becuase quite likely they hadn't
even assessed his paperwork because his volunteer rep had "spoken
to Sandra Beeton" not "met Sandra Beeton in
your absence" or "discussed the file with Sandra
Beeton in your absence" so it was probably a phone call
by a volunteer about how she understood her colleague's case
to an official who was experienced but not a law society member
or bound by any other standards except Unison's. Union officials,
like anyone else in the vuluntary sector, have trouble explaining
what they've done well and getting it backed-up and understood
in the job market. This Sandra Beeton person quite likely knows
what shit Unison are but can't easily get another job and like
the rest of us has near zero rights over management decisions
as an employee.
The volunteer then tried to remember the phone call when reporting
back. If my own experience of TGWU
1/1148 branch is the same, they are not ashamed and are running
a social at the Bread and Roses pub Clapham on the evening of
the 10th of December. Why should anyone criticise them from such
a weak position as a sacked former colleague who their socal
club, sponsor and union has ripped off? Why should they bother
to set-up a proper union if their nostalgia, loyalty, and subsidy
to their other political hobby's landlord is all bound up with
Unite-Transport and General Workers' Union? I understand that
a better-known firm of solicitors now represents TGWU
1/1148 members, but one of the firms that might do all a
union's employment law work for free in exchange for getting
the personal injury work according to anonymous reports to the
Mr Jervis proved Unison's legal assesment - if you can call it
that - wrong by winning a £60,000 case against the employer,
and his life is recorded on Bailii after he tried to get his
legal costs back from Unison by telling a tribunal that they
are discriminating against a member. Unembarrassed, the union
appealed and this is only reported because appeal tribunals could
be part of case law, so all of them have to be reported and a
firm is paid by the courts to take notes for the courts' web
site. There are no newspaper reporters - not even in the Watford Observer.
nobody thinks it odd that a union has lawyers on the wrong side
against a member. The
local MP, Claire Ward, doesn't take up the case rather than
listen to requests for more pedestrian crossings that should
have been adressed to councillors. She has a law degree so this
ought to be something she understands, but she's not monitoring
the employment appeals tribunal website for local cases as far
as she makes-out. She doesn't record on her web site what she
was fussing about in late 2006 or whether this is sarcastic:
"I joined the Select Committee for Culture, Media and
Sport where I contributed to reports on the Royal Opera House,
the Dome, the Millennium preparations and the rebuilding of Wembley
Stadium." She is paid several tens of thousands of pounds
a year with three secretaries and two offices. Most people who
earn this much would make it clear whether they approve or dissaprove
of The Royal Opera House, The Dome, The Millenium Preparations
and the rebuilding of Wembley Stadium (or the fucking Olympics:
she leaves that one out) but Claire Ward's level of existance
is not one on which these things can be left un-questioned, because
the system in all parties is double edged she is a Good Person;
better than you - don't heckle. At the same time she is a Champion
of things you wouldn't want to eat. She gets the headlines in
local papers about dog poo that constituents read while lining
their bins with the otherwise unread paper. "Poor sod",
they think, "having to campaign about dog poo and
meet all those unpleasant rude people at unsocial times of day"
and so the MP gets elected on a sympathy vote rather than elected
on a vote about what they've done to prevent the Royal Opera
House, The Dome, The Millenium Preparations and the Rebuilding
of Wembley Stadium.
Some MPs even have their electoral expenses paid for by unions
such as Unison, but it's not obvious from her website whether
she is one of them. Google searches don't bring-up anyone on
health authority committees who says "maybe we can learn
from this"; no UK party in Watford or anywhere is interested
in the rights of employees and this case sinks back into the
I got the same tribunal chair who's judgement was overturned
by the appeal tribunal. I got him a few months later for my pre-hearing
reviews, at which one tribunal chair sitting along can pretty-much
wipe-out a claim at whim, and if he claims to be doing it because
of time limits there is next to no appeal.
The union lawyer was appointed at the last minute, after I
had written the case, sent a disability discrimination questionnarre
and a grievance letter, assembled evidence, and when I had sent
my complaint to the tribunal. The lawyer had met me for an hour
but refused to spend any more time, check for mistakes in the
case, read or take any of the evidence, or make it up into a
He wasn't up to date with the law. In retrospect I think he was
trying to loose it as quickly as possible to cut his losses after
the other side hadn't settled. The tribunal chair discovered
that "the case could not continue" with this
pretend lawyer and no evidence, and suggested I turn-up for a
hearing that afternoon. When I turned-up for the second part
of the pre-hearing review neither the tribunal chair nor the
union lawyer told me that most of the case had already been discussed
without anyone having any evidence. The union laywer told me
where to get a sandwich.
I would have expected the chair to
- chuck-out the chancer so that I could make my own case. It
was obvious from the paper that I had done a lot of work which
someone representing themselves would have been allowed to explain
- if only in a proper pre-hearing review and not one designed
to cover-up the failings of a Labour Party funder.
- stop the hearing until the lawyer called me - which is what
happened - but then to ask what was in my bag of evidence seeing
as the lawyer had refused to read it, or at least
- tell me what had been discussed earlier so that I could guess
that the lawyer needed to be dismissed.
The chair did none of the above. I only discovered that nearly
the whole case was out of the window without any evidence being
seen when the chair closed the hearing and found most points
against me. I told the chair that my case was now against the
T&G and asked if he could bear this in mind when making his
"I cannot do that and I think you know the reason
why not", he said
It's hard to explain a riddle. Tribunal chairs do not usually
speak in riddles, which would be ridiculous, so I suppose he
was either patronising me or saying something indirectly that
could damage his career if said directly. After googling his
name I discovered his recent overturned judgement above, and
guess that the reason for it being overturned was not the one
stated by the appeal tribunal - he was no better at natural justice
in my case than Mr Jervis's - but because he had criticised a
union. Another recent
word document from the appeals trubunal (UKEAT/0349/07/DM)
shows another of his judgements challenged because parties didn't
have a chance to know what was going-on, so the judging style
looks unchanged. What did change was treatment of trades unions.
Based on a survey of members leaving UNISON, this
study suggests that more than 40,000 members leave the union
every year because of their dissatisfaction with some aspect
of structure, organisation or policy. This analysis identifies
some of the barriers faced by unions that are attempting to promote
more participative unionism in order to reduce rates of membership
turnover. There is a charge to buy the study so I don't know
Organisation managers, MPs, and professionals are prone
to one fault in common. Each are tempted to use rank and status
to fend - off complaints. The habit often gets so strong that
they don't realise they are doing it. This is Leo Abse and Cohn
showing-off that they provide a cheapskate service to Royal College
of Nursing (RCN) members, funded by cross-subsidy between the
higher-paying no-win no-fee cases and the completely unprofitable
ones like employment law.
Oddly enough they might find that RCN members don't suffer
from medical negligence cases as much as the rest of us so the
business might not pay. And in their own words, they offered
a "competative pitch" rather than quoting the going
rate for the job. And the RCN contact for Wales seems un-embarrassed
that the law society is striking-off one solicitor after another
for under-quoting for services to union members and lying to
them that the services has been properly paid for. Morden-sounding
language, size of organization and status are what the statement
Law firm wins major union contract - 13th April 2007
- A leading South Wales law firm has joined forces with
the Royal College of Nursing to become the organisation's official
provider of legal services for its Welsh members. Leo Abse &
Cohen will offer legal advice to the 23,000 members in Wales
represented by the RCN, the UK's largest professional nursing
- The firm won the contract following a competitive pitch
and will represent nurses, health care assistants and nursing
students on all of their legal requirements, from employment
issues and personal injury in the workplace claims, to personal
matters such as buying a home or making a will.
- Tina Donnelly, Director RCN Wales, said: "Part of
our membership package is entitlement to legal advice and we
want to be able to offer our members in Wales access to the best
possible legal services. Leo Abse & Cohen is a modern, multi-discipline
law firm whose professionalism and experience speaks for itself."
Telephone advice for about £80 a year - appeals not
covered - price offers vary
- Poverty Wages
- More subsidies than Corporation Tax
- Treating staff as robots
- Crushing small business
Telephone advice for about £80 a year - appeals not
covered - price offers vary
Telephone advice for about £80 a year - appeals not
covered - price offers vary
Just Say "No"
Pay a financial advisor commission to tell you about pensions.
Pay a pension company commission for putting your money into
a tracker fund and inventing extra rules and charges.
Pay tax on your pension when you're 65.
You don't have any choice in this: this is a public service
advert on behalf of the financial thingey authority
- Poverty Wages
- More subsidies than Corporation Tax
- Treating staff as robots
- Crushing small business
where to get the last
penny from your last
£10 of savings or shared money