Trades Union Congress unfairly dismiss Darren Lewis and Greg Lepiarz

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The Tribunal finds that given the “poverty of the investigation” there were not reasonable grounds to dismiss and there were unreasonable failures from an employer which by “its nature should have had a much better grasp of the ACAS Code.”

Gerard Airey of Kilgannon and Partners (who along with Paul Livingston of Outer Temple Chambers represented the Claimants) comments as follows:

“Darren and Greg are staunch trade unionists. They have been put through a dreadful experience, badly let down and unfairly dismissed by the main body that advocates their protection. The findings that the TUC failed to investigate matters properly and breached the ACAS Code are startling as a result. There was a failure to provide evidence, and Mr Nowak should not have been involved in both the dismissal and appeal process. It was alarming that Mr Nowak indicated he reviewed the dismissal letters and allowed the Claimants to be dismissed for breach of a policy that didn’t exist. It is also alarming that there have been significant breaches of the ACAS Code of practice given that Mr Nowak was appointed as a member of the ACAS Council in November 2011. I echo the finding that the TUC should have known better.

The TUC have charged Darren and Greg with bringing the TUC into disrepute by their conduct. In fact, it is the TUC’s failings that bring it into disrepute. They cannot on the one hand suggest how employers should carry out processes and then ignore this themselves. That is the definition of bringing the TUC into disrepute and it will be interesting to see if those at fault are now quick to be charged with the same allegation that they levelled at the Claimants. That is a question that the union movement as a whole should now be pressing the TUC to answer. This should not have been allowed to happen and Darren and Greg also should have received more support from their unions, Unite and the GMB.

The union movement should also be made aware that Darren and Greg have been banned from TUC premises, thus preventing them from taking part in trade union activities and the TUC have refused to lift this ban. This ban should be lifted immediately and I would urge unionists to support a campaign for the lifting of this ban at the conclusion of this case.”

The facts:

Darren Lewis (‘DL’) began employment with Trades Union Congress (‘TUC’) on 17 September 2001. Greg Lepiarz began employment on 4 June 2018. Both are staunch trade unionists. To assist Newham Trades Council (‘NTC’) GL provided a website to the NTC (importantly IT services are not provided by the TUC to Stakeholders such as NTC) . The arrangements for the website were agreed between Ms Dye, NTC General Secretary, and the Claimants. GL required a payment to cover the costs of the website, but not his time spent working on the site as this was costing him money.

It was agreed that there would be a payment of £320 by Ms Dye to GL. Unfortunately, there was some confusion about whether this had in fact been paid and Ms Dye then raised concerns to the TUC about the website and she reported that her relationship with DL and GL had soured after money was requested having initially thought that the website would be free. GL then wrote to Ms Dye to ask for bank details to repay the £320 and the Tribunal found that this email was deemed by the TUC to be a demand for payment, rather than what it was, a request for details to make repayment.

The TUC swiftly started disciplinary proceedings and suspended DL and GL so that they could secure and preserve evidence. In the course of their investigation Ms Dye sent the TUC a differing statement confirming that a set-up fee had been agreed for the website, but rental fees had not been expected. As part of the disciplinary process GL presented documents showing costs incurred in the sum of $720. This evidence was deemed by the TUC to be unclear, but they didn’t ask GL to explain or produce additional supporting evidence.

The TUC charged GL with 1) providing an IT service to NTC and charging them for this service; 2) giving a false impression that the service was being offered by the TUC to trades councils; 3) using his TUC email account to provide the service and communicate.

DL was charged with facilitating GL to provide IT services to NTC, which he charged them for.

DL and GL were dismissed. All charges were upheld and the TUC also dismissed on charges that were not in the allegations, such as the breach of the conflict of interest policy and disclosure of interest policy and bringing the TUC in to disrepute.

The dismissal letter was signed and authorised by Paul Nowak, now TUC General Secretary (Deputy GS at the time). He confirmed that he would have satisfied himself that the policies had been applied fairly and that the letter was competent. He then proceeded to hear the appeal and upheld the dismissal.

The law:

When assessing if a dismissal is fair or unfair the Tribunal will ask itself:

1. Did the Respondent genuinely believe the Claimant was guilty of the alleged misconduct?
2. Did the Respondent hold that belief on reasonable grounds?
3. Did the Respondent carry out a proper and adequate investigation?

The Tribunal must not substitute its view for that of the employer. They must ask if dismissal was in the band of reasonable responses open to a reasonable employer. The objective standards of the reasonable employer must be applied to all aspects of the question of whether an employee was fairly and reasonably dismissed.

The decision:

The Tribunal’s concluded as follows:

The investigation

• There was a lack of consistency amongst Ms Dye’s various statements.
• A reasonable investigation would have included questions about why Ms Dye believed the work was being offered through the TUC and what emails she had from GL’s TUC email account given that Ms Dye had provided none to the TUC.
• Ms Dye’s evidence had not been probed at all by the TUC and they did nothing to look for evidence of innocence as well as evidence of guilt.
• A reasonable employer would have recognised that asking more questions of Ms Dye, as the only witness, may well have led to a different interpretation of her evidence. They relied solely on this uncertain evidence.
• The disciplinary panel did not have all of Ms Dye’s statements before it. There were collectively concerning differences between the statements which had the potential to undermine her credibility. Ms Dixon accepted that these materials should have been provided and had no real explanation as to why she had not done so.
• Mr Rowan said “we were looking for a level of misconduct which fell below our standards and we had enough evidence to prove that this was the case” This attitude led to the substantial flaws identified.
• Each failing closed down the possibility that the material evidence of innocence would be found. This rendered the investigation as a whole cursory and unfair.

Reasonable grounds

• The evidence didn’t reasonably support a finding that GL had operated for profit/commercial gain. He presented documentation to show costs incurred and it was not reasonable of the TUC to reject that evidence without seeking to understand it properly. GL’s evidence on these issues was perfectly cogent.
• Ms Dye’s evidence referred to a set up fee and rental fee and no one clarified with her if she thought GL was charging for his time and why she thought he was.
• DL had done a significant amount of apparently free work for Ms Dye in other respects. This made it less inherently improbable that the website would have been produced on a not-for-profit basis.
• Given the poverty of the investigation conducted by the TUC, there was not sufficient evidence which a reasonable employer could conclude the website had been provided with a view to commercial gain.
• There were no emails sent from GL’s TUC email address and Ms Dye wasn’t asked to produce such emails. No search of GL’s emails was conducted by the TUC.
• The invoice was not on TUC paper or made out to the TUC or to be paid to a TUC bank account.
• Ms Dye was unclear why she thought the work was being done on behalf of the TUC and the TUC didn’t clarify this with her.
• It wasn’t reasonable to find GL had given the false impression that the service was being offered by the TUC. There was also no email search carried out to substantiate a charge that GL had used a TUC email account to provide the services and communicate as a service provider with NTC.
• There were not reasonable grounds to conclude that DL brokered and facilitated the provision of IT services for charge.
• There were not reasonable grounds to conclude there was a charge over and above the costs of providing the website.
• Given that the Respondent had good evidence of DL providing voluntary assistance with Zoom code, flyers and business cards, without further investigation the Respondent could not have reasonable grounds to conclude that he gave a false impression the service was offered by the TUC.

The additional charges

• In respect to the breach of the conflict of interest policy, there was not in fact a conflict of interest policy. The relevant parts of the disclosure of interest policy were not put to GL.
• There were not reasonable grounds to conclude the GL had brought the TUC into disrepute.

General procedure

• The Tribunal agreed with the Claimants’ global submissions that they had not had a fair opportunity to respond to the additional charges and the appeal hearing was not sufficiently comprehensive to rectify the failings at the earlier stage of the procedure.
• It was unnecessary and unfair for Mr Nowak to have heard the appeals given the availability of Baroness O’Grady (the General Secretary).
• Mr Nowak would not have appeared to be, nor could he properly be considered to be impartial and this aspect of the procedure contributed to the overall unfairness of the dismissals. His appeal compounded that unfairness.
• The TUC failed to take account of DL’s long service.
• It was difficult to understand the thinking behind the decision not to disclose the statements from Ms Dye. There were some 11 instances of communications from Ms Dye to Ms Dixon not provided to the disciplinary panel or the Claimants. This was material unfairness.
• The suspensions were problematic. The main reason was to preserve evidence and the TUC did nothing to obtain that evidence.
• There was no review of the suspensions and there was no explanation of that failure. The witnesses used the rational as pretexts without any real analysis of the situation.
• There was so much wrong with the investigation that the Tribunal were left in territory where it was simply impossible to conclude with any confidence that a wholly different process might have led to fair decisions to dismiss.

Failure to follow the ACAS Code

• There were significant failures with significant effects.
• They were unreasonable failures on any view but the more so when considering that this was an employer, which because of its nature should have had a much better grasp of the ACAS Code.
• The failures were done with an awareness of what the expected standard was and there were no identifiable mitigating features.
• This was a sizeable organisation with a dedicated HR function which should have known better.

The matter is now to be listed to consider the remedy that should be given to the Claimants. For this reason, the Claimants are not commenting until the conclusion of the remedy hearing other than to thank the Tribunal for their careful consideration of their cases and their supporters (including those who donated through CrowdJustice) for keeping them going when times were particularly tough.

For any enquiries about this case please contact Gerard Airey at ga@kilgannonlaw.co.uk

Article by

Gerard Airey

ga@kilgannonlaw.co.uk

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This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 04.06.2024