Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 412/12

413/12

414/12

 

CLAIMANTS:                    1.       Jennifer McGarvey

2.               Rosemary Norton

3.               Rebecca Parsons

 

 

RESPONDENTS:              1.       Momentum Support Limited

                                        2.       David Ferguson

 

 

DECISION

The decision of the Industrial Tribunal is that Mr McLaughlin qualifies as a companion in relation to disciplinary and grievance meetings within the meaning of Article 12 of the Employment Relations (Northern Ireland) Order 1999.  We order the first-named respondent to pay each of the claimants the sum of £90.50 in respect of one week’s pay.  In light of this decision, the second part of the claim relating to alleged breach of the Transfer of Undertaking and Protection of Employment Regulations has been adjourned by agreement between the parties to allow the parties to pursue the matter through a grievance meeting.

 

 

Constitution of Tribunal:

 

Chairman:              Miss E McCaffrey

 

Members:              Mr J Law

                              Mr H Stevenson

 

 

Appearances:

 

The claimants were represented by Mr Gerry McLaughlin.

 

Both respondents were represented by Ms Alana Dunican, Human Resources Manager of the First Named Respondent.

 

The Issues

 

The issues for the tribunal to decide were as follows:-

 

1.       Was Mr McLaughlin an accredited companion for disciplinary and grievance meetings within the meaning of Article 12 of the Employment Rights Order (Northern Ireland) 1999.   

2.       Had there been a breach of the TUPE regulations once the claimants’ employment passed to the first named respondent.

 

The Facts

 

3.       The tribunal considered documentation presented by both parties and heard direct evidence from Mr McLaughlin in relation to his credentials as a Union representative.  In particular he handed in to the tribunal a letter from Unite Union and his life membership Union card.  He indicated that he had been a Union Official in his job within the Civil Service prior to retirement and had represented Union members at tribunals.  He indicated that he was now retired from full-time employment but was life member of the Union and represented people at grievance and disciplinary meetings on a voluntary basis. 

 

4.       The respondents pointed out that they required an accredited Trade Union Official.  They pointed that the claimants were not members of the Union and that they had to be careful about who they had to represent them.  The claimants were cleaners at Loreto Convent in Coleraine and were not members of any trade union.  Mr McLaughlin’s evidence was that he had represented staff at Loreto Convent over many years.  When the first named respondent refused to accept Mr McLaughlin as a companion, the cleaning staff refused to negotiate directly with the respondent thus leading to an impasse in discussions regarding the alleged breach of the TUPE regulations.

 

5.       It was agreed that we would address the issue of the appropriate companion first.    There had been correspondence between the parties, which was produced to the      tribunal, as follows.

 

(a)   A letter of 10 August 2011 from Gareth Scott Regional Industrial Organiser confirming that Mr McLaughlin had received training and had experience in acting as a worker’s companion at disciplinary and grievance hearings.  The letter continued,

 

“This letter acts as certification of Mr McLaughlin’s credentials as a credited companion (SIC) in compliance with the Employment Relations Order.” 

 

A certificate was enclosed showing that Mr McLaughlin had completed a course entitled “The Law and you”. 

 

(b)   Following this there was correspondence between Ms Dunican and Mr Scott.  On 6 June 2012, Ms Dunican sought clarification as to whether Mr Scott’s intention was that Mr McLaughlin would represent Momentum employees on behalf of Unite, when the claimants in this case were not members of the Unite Union. 

 

On 4 July 2012 Mr Scott replied and confirmed that although Unite had members in the first named respondent, the Union had not specifically allocated Mr McLaughlin to represent them.  His letter then stated,

 

“However it is my understanding of the legislation that it is the employee who can choose who their companion is and that the employer should accommodate their chosen companion provided they are a Union representative, an Officer of a Union who is directly employed by that Union or an Officer of an Union where that Union has confirmed in writing that the companion has received training and has experience acting as companion in disciplinary and grievance hearings.  In this regard I can confirm that Mr Gerry McLaughlin has received training from Unite the Union and has experience in accompanying workers at disciplinary and grievance hearings. 

 

It would appear to me that it is for the employer to decide whether they will allow the employee’s chosen companion to accompany them in the light of the above information”.

 

(c)    Ms Dunican wrote again to Mr Scott on 12 July 2012 saying,

 

“From my reading of the Employment Relations (Northern Ireland) Order 1999, I understand that companion (excluding a fellow worker) includes an Official of a Trade Union whom the Union has reasonably certified as having experience of or having received training in acting as a worker’s companion at disciplinary or grievance hearings.  I note your confirmation that Mr McLaughlin has received the necessary training and has the experience but you have not indicated whether he is an Official of Unite the union.  I would be grateful if you would confirm by return whether Mr McLaughlin is such an Official.”

 

6.       Each of the claimants was employed as a cleaner at Loreto Convent working 12 and a half hours per week for which they received a payment of £90.50 gross per week.  Because their tax positions varied, they did not all have deductions of tax and national insurance but those who did received net pay of £88.80 per week. 

 

The Relevant Law

 

7.       The right to be accompanied at disciplinary and grievance hearings is set out in the Employment Relations (Northern Ireland) Order 1999.  The relevant parts of Article 12 of that Order provide as follows:-

 

“12   (1)   This Article applies where a worker –

 

                          (a)   is required or invited by his employer to attend a disciplinary or grievance hearing and

                          (b)   reasonably requests to be accompanied at the hearing.

 

(2)   Where this Article applies the employer must permit the worker to be accompanied at the hearing by one companion who –

 

        (a)   is chosen by the worker; and

 

        (b)   is within paragraph (3)……………………………..

 

                  (3)   A person is within this paragraph if he is –

 

     (a)   employed by a Trade Union of which he is an Official within the meaning of the Trade Union and Labour Relations Order.

 

     (b)   an Official of a Trade Union(within that meaning) whom the Union has reasonably certified in writing as having experience of or as having received training in acting as a worker’s companion at disciplinary or grievance hearings; or

 

     (c)    another of the employer’s workers………”

 

Article 13 of the Order provides as follows:-

 

“13   (1)   A worker may present a complaint to an Industrial Tribunal that his employer has failed or threatened to fail to comply with Article 12 (2A) and (2B) or 4.

 

        (2)   A tribunal shall not consider a complaint under this Article in relation to a failure or threat unless the complaint is presented –

 

     (a)   before the end of the period of three months beginning with the date of the failure or threat or;

 

     (b)   within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

 

        (3)   Where a tribunal finds that a complaint under this Article is well founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks’ pay………”

 

                         The Trade Union and Labour Relations (Northern Ireland) Order 1995 provides in the definitions at Article 2 as follows:

 

“Official” in relation to a Trade Union, means –

 

(a)   an Officer of the Union or of a branch or section of the union; or

 

(b)   a person elected or appointed in accordance with the rules of the Union to be a representative of its members or some of them and includes a person so elected or appointed who is an employee of the same employer as the members or one or more of the members whom he is to represent.

 

Decision

 

8.       The main issue in relation to this case appeared to be that the employer was not satisfied that Mr McLaughlin was properly accredited by the union.  He had been a Union Official while working in that he had confirmed that he was a convener of the Union.  Although not a full time paid Union Official, he was nevertheless an Officer of the Union.  The issue from the employer’s point of view was whether he was still an “Official” of the Union, within the meaning of the legislation.

 

9.       After consideration of the matter we are content that Mr McLaughlin is accredited by Unite Union to act as a companion at disciplinary and grievance meetings within the meaning of Article 12 of the Employment Relations (Northern Ireland) Order 1999.   Although no longer a Union Official as he is retired from full time employment, we are content that he nevertheless falls within the definition of “Official” in the Trade Union and Labour Relations (Northern Ireland) Order 1995, in that he is “a person elected or appointed in accordance with the rules of the Union to be a representative of its members or some of them”.  In this regard we refer to Mr Scott’s letter to the first respondent of 10 August 2011, which clearly states,

 

“This letter acts as certification of Mr McLaughlin’s credentials as a credited companion in compliance with the Employment Relations Order.” 

 

In this regard we would respectfully point out that Mr Scott’s letter of 4 July 2012 to Ms Dunican does not accurately state the law, in that he indicates that a person can be an accredited companion if they are a Union representative, a directly employed Officer of a Union or an Officer of a Union where the Union has confirmed in writing that the companion has received training.  This is at variance with the law as stated in the Trade Union and Labour Relations (Northern Ireland) Order 1995, which does not require a person to be currently an Officer of the Union, if they have been elected or appointed in accordance with the rules of the Union to be a representative. 

 

10.     In light of this we believe it would be contrary to the letter and spirit of the legislation if Mr McLaughlin were not able to act as a representative for the parties.  We order the first-named respondent to pay each of the claimants one week’s pay of £90.50 (gross) by way of compensation.

11.     We gave this decision orally in tribunal and following this, the parties were allowed some time to consider their position in relation to the TUPE matters before the tribunal.  It was clear that at that stage there had been no exchange of information or documents.  Ms Dunican indicated to the tribunal that she would appreciate time to explore the grievances and to use internal procedures to do that in the first instance.  Mr McLaughlin confirmed to the tribunal that a grievance meeting would now be held to see if matters could be resolved.  Accordingly, we agreed that the matter should be adjourned by agreement between the parties to see if the matter could be resolved by the grievance procedure.  We indicated to the parties that they should notify the Office of the Industrial Tribunal within 6 weeks if the case required to be re-listed.  They were also advised that if they had not notified the office within 6 weeks, the case would then be relisted for hearing.

 

12.     This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:  1 August 2012, Belfast.                   

 

 

Date decision recorded in register and issued to parties: