Motion 62 : Review of Legal Services Department Employment Law
Conference carried Motion 62 at this year’s annual conference and instructed the NEC to provide a report to branches. A draft document was placed before the NEC at its November meeting.
In addition to the points raised during the debate at annual conference and in order to address a number of issues that had consistently been raised with my department, I issued LTB 475/2015 and sought the views from branches on the following.
Q1 The criteria for support current conference policy requires claims to have a greater chance of success than failure if we are to provide support, i.e. greater than 50%.
Q2 Should we support claims that commence prior to an individual becoming a member of the CWU? The current national rule 3.2.4 states no member shall be entitled to retrospective benefits or services.
Q3 If a claim fails to be supported by CWU HQ having been assessed via the Legal Services Department and the member decides to pursue their claim privately and subsequently is successful, should CWU HQ offer financial assistance towards legal costs? The current position does not provide this facility.
I received eleven responses from branches and a summary is listed below.
Q1 6 supported the current criteria, 5 suggested it should be reviewed.
Q2 11 supported the current policy.
Q3 1 supported the current position,10 stated the policy should change.
The principal theme within the motion was the need to review the services provided to our members as a result of the numerous changes made to employment rights by the Government, all of which have had a serious negative impact on an individual’s ability to access justice.
The review needs to address two fundamental issues.
How can we assist branches in dealing with our members original enquiries.
How can we improve the system of support at national level via the Legal Department.
The vast majority of our members who claim unfair dismissal receive support from local officials during the agreed discipline procedures and find it difficult to understand the reasons why the union then decides not to provide representation at a tribunal.
Members are entitled to representation by the CWU relating to conduct and disciplinary issues as an integral benefit of union membership. However, no such right applies to representation at an Employment Tribunal. Members have a legal right to apply to the Tribunal Service if they have a dispute but CWU support is a discretionary benefit as per national rule 4.1.7.
The simple fact remains, the tribunal process is not a re run of an internal discipline process. Tribunals do not have the authority to apply their own interpretation as to the validity of a disciplinary award made by an employer. Their role is to decide if the actions of the employer are lawful.
I can well appreciate the frustration of local officials who have to break the news to their members in circumstances where national support is not forthcoming at the tribunal stage. However my department not only has a responsibility to provide legal services to our members, it also has a responsibility to act within the rules of the Union.
In dealing with the terms of Motion 62, I need to clarify a few points.
During the debate at annual conference there was a misunderstanding regarding the early conciliation (EC) process, as listed within the motion and as expressed by speakers during the debate.
The motion sought to put in place a process whereby a member requesting support from the CWU should receive some indication from the Legal Department as to the merits of their claim during the four week EC process, in order for the member to be in a position to make an informed decision on how to proceed with their claim if support was not forthcoming from the CWU in advance of any tribunal issue fee being paid to enter into the tribunal system.
At the moment, the issue fees (£160 or £250 depending on the type of claim) are refunded by CWU HQ irrespective of the merit of the claim and the branch was attempting to avoid this expenditure being incurred by HQ in situations where our members claim did not meet the merit criteria.
The facts are that the EC process begins when our member contacts ACAS which is mandatory and provides ACAS with basic details of the claim plus the contact details of whom the claim is against (usually their employer). ACAS then make contact with the employer to see if they are prepared to enter into early conciliation. If the answer is yes, then there is a four week period for discussions to take place. If the answer is no to EC, the process then ends and the member can apply to the Employment Tribunal, at which point the issue fee has to be paid.
So in reality and is more often the case, the employer says no. Therefore there is no four week period in which the Legal Department can provide a view as to the merits of our members’ case.
The NEC agreed to pay the issue fees, in order to ensure our members were not disadvantaged by the Government’s introduction of such fees which allows our member the opportunity to pursue their claim, with or without, CWU support.
The sponsoring branch intentions were to try and avoid the CWU from incurring this expenditure where our member presented weak claims. Sadly, the EC process does not always provide the time, or opportunity, for an opinion to be formed as to the merits of our members claim. Another problem with trying to form an early opinion at this stage is the Legal Department would not have sight of the necessary documents i.e. the employers response to our members claim in order to make an informed view. It would not be in the members’ best interest if we indicated CWU support having only had sight of one side of the dispute.
We could however indicate to our members’ based on their evidence alone if we felt their potential claim was poor providing we had details of the internal disciplinary notes.
Another issue listed within the motion requested in circumstances where our members claim had potential merit members receive some legally based communication that does not mislead the member around total support.
Again the wording creates some difficulty, in so far, that a claim that has potential merit does not always mean the claim will always have our total support. The strength, or weakness, of a case will develop as we investigate the claim and as new evidence is obtained this will impact on what level of support we can provide.
Current Claims Process. At present the Legal Department makes use of both our panel solicitors and our own in house ET Panellists to assess our members’ claims, depending on the complexity of the claim. In circumstances where the advice is not favourable we get requests from the member and/or the branch to seek a second opinion. This normally follows the route of if the case was assessed by our solicitors members’ seek an additional view from our ET Panellist who would have a more detailed operational knowledge of our members working environment and may take a more practical view of the claim, as opposed to a purely legal view. This has, on occasions, produced a different view as to the merits of the claim and a successful outcome for our member. The same applies when claims are first assessed by our ET Panellist; members then seek an additional legal opinion from our solicitors.
In order to improve the service we provide in these situations we now have an opportunity to have the best of both worlds. Within our own law firm, Unionline, we have a team of experienced employment lawyers who we can access. To date, they have been assessing employment claims for GMB members with a great deal of success. We are now able to tap into this resource and have our members’ claims assessed by them. Claims are assessed based on documentation alone and written legal advice is provided. The advice would then be sent to our ET Panellists who then armed with the initial legal advice would then discuss the case with our member/ branch and make a final assessment as to the merit of the claim and recommend CWU support, or otherwise.
An additional benefit for making use of Unionline is financial. At present we pay our panel solicitors an annual retainer to provide legal opinion on our members’ claims. The employment team within Unionline can absorb the CWU employment work at no additional cost, thus removing the need to make the retainer payment to our solicitors.
Branches should note that Unionline employment team do not run claims to tribunal so we would continue to use our in house ET Panellists and our panel firms when required.
Proposed Action Points
Early Conciliation Process. Assistance will be provided to branch officials in line with previous LTB’s 186/14 and LTB 205/14 and additional training will be developed and continue to be provided on request from branches or regions. The EC process has to be entered into before members’ can access the Employment Tribunal system. Advice as to the merit of our members’ claims will be given, where possible, this will depend on information available and time limitations.
Payment of Tribunal Issue Fees. We should continue to pay these fees on behalf of our members unless there are clear indications that the claim has little or no merit. Assessment to be made during Early Conciliation process, where possible. If the member decides to proceed with an ET application without CWU support, then the fee will be their responsibility.
ET Assessments. All appropriate Employment applications to be assessed by our employment lawyers at Unionline providing initial written advice. Details will then be forwarded to our ET in house panellists who will, wherever possible meet with the member and/or branch to discuss the merits of our members’ claim and make recommendations on providing representation at the tribunal. In more complex tribunal claims, e.g. those involving discrimination issues we will also continue to make use of our panel solicitors.
In addition to the above Unionline is now able to provide advice on employment issues via the helpline (telephone number 0300 333 0303) which members and branch officials can access direct for advice and information, as well as obtaining advice from the Legal Services Department.
All of the above measures will, I believe, improve the service to our branches and members.
Turning now to the three issues raised in LTB 475/2015.
Q1 There is strength of opinion that the criteria for supporting members’ claims should be viewed with a wider outlook taking into consideration the operational circumstances surrounding our members claim as well as the legal advice. I believe this is a sensible approach which would allow a degree of flexibility when arriving at a final decision.
Q2 There was a clear view that services should not be provided retrospectively.
Q3 There is strong support for providing some financial assistance to members who decide to run their ET claims as private clients in circumstances where the Legal Department has rejected their claim based on the merit criteria. In such situations the level of financial assistance should be based on the individual circumstances of each claim, taking into consideration the findings detailed within the tribunal judgement and any contributory factors, such as evidence provided during the tribunal hearing that was not available to the Legal Department at the point the claim was assessed.
As part of the review the NEC gave consideration and reached agreement on the following issues.
That a review of the current panel of solicitors takes place in relation to the previous advice we received against the final outcome of the cases. In addition, the Legal Department will also explore the option of a more specialist pool of individual solicitors/barristers for future cases/representation.
That the Legal Department introduce a new process of reviewing the outcome of ET cases in terms of lessons learnt in the form of a summary that will be produced every six months to assist with future representation and to assist with discussions/negotiations on future industrial agreements.
Amongst the more difficult claims the Legal Department has to deal with are ones where individuals join the Union at the last minute just prior to a formal dispute being raised with their employer and then seek legal advice and representation from the CWU. This usually occurs in industries outside of our core membership base. Such claims require a higher level of investigation which amounts to a disproportional level of incurred costs in relation to the level of membership subscriptions paid by the new member. This situation leads to a “pay as you go” style approach to union membership and our experience shows that in many instances the individual only joined the Union in order to obtain free legal advice and representation. In order to prevent individuals from taking advantage of this situation and to also ensure the resources of the Legal Services Department are provided to genuine members, the NEC has decided to place a six months time limit on union membership before members are entitled to representation in Employment Tribunal matters. To clarify the point, members who have less than six months membership will be eligible to receive initial advice but will not be eligible to receive legal representation in employment issues. This is with immediate effect for all new membership applications.
It is clear that the provision of legal services requires constant review, taking into account changes in legislation being introduced by the Government along with the needs of our membership and the financial constraints of the Union.
Conclusion :
The following recommendations have been agreed by the NEC.
The general principals contained within the report are agreed.
The merit criteria previously agreed at annual conference now becomes a guideline.
The current rule on retrospective benefits or services remains. National rule 3.2.4 refers.
Financial assistance is provided to members on a discretional basis, as outlined in the report.
A six month membership period is applied before legal representation is provided in employment issues. Applicable to all new membership applications.
The contents of this report apply to all members in England, Wales, Scotland and Northern Ireland. However, branches should note that the range of services available to our members will vary because of the different legal jurisdictions that are in force within these geographical areas.
If you have any queries regarding the above, please contact Tony Rupa, Head of Legal Services, Communication Workers Union, 150 The Broadway, Wimbledon, London, SW19 1RX. Telephone 0208 971 7444 or via email trupa@cwu.org
Yours sincerely
Tony Rupa
HEAD OF LEGAL SERVICES
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