Further to LTB 606/19 circulated on 18th October 2019, I write to update Branches on further developments in relation to average pay on leave in Royal Mail Group, both in terms of pursuing collective action and ongoing negotiations with management.
CURRENT STATE OF EMPLOYMENT TRIBUNALS
England and Wales
Due to the sheer volume of Employment Tribunals that have been lodged in England and Wales (it is estimated that the current number is around 2,000) a request was made by the Tribunal to extend the stay on these claims until 1st March 2020. In conjunction with the Legal Services Department a conference call was held with Richard Lozano (Head of Employment Law at Unionline) and Barrister Deshpal Panesar on 23rd December 2019. Despite some initial reservations, agreement was reached to accept the request in order to allow further time to identify specific lead cases to be put forward in advance of the case management hearing and provide time for these cases to be fully considered.
The DGS(P) Department has been in contact with various Branches with a significant number of claims for average pay on leave and as a result have forwarded one potential test case to Unionline from each of the following Branches: Western Counties, North Lancs & Cumbria, South Yorkshire & District, Durham County, York and District, East London Postal, South East London Postal and Plymouth & East Cornwall. It would be remiss of me not to place on record my thanks to those Branches mentioned for identifying and submitting these cases so swiftly.
Unionline has confirmed that the next stage in the process will be a preliminary hearing at the Bristol Employment Tribunal in March or April 2020 to identify the lead claimants to act as a representative sample of all claimants who have lodged claims. A full merits hearing will then take place where the legal merits of the lead claimants’ cases will be tested. We have also been advised that if the lead claimants are successful with their claims, it will mean that Royal Mail Group are not acting in accordance with their legal obligations and will be liable for the losses of those workers who have lodged claims.
In advance of this hearing and to ensure that we have a robust process in place to progress through each stage, the DGS(P) Department has arranged a meeting with the Legal Services Department and Richard Lozano (Unionline) on 11th February 2020 to agree next steps.
Scottish cases have now been sisted (stayed) until 20th April 2020 and Brain McLaughlin from Unionline has been registered as the solicitor who will handle the cases in Scotland. A similar process to that in England and Wales will now occur in Scotland, albeit the timescales are different.
The volume of cases in Northern Ireland have been smaller than elsewhere at the time of writing. This may be due to the fact that currently a different process has to be followed in Northern Ireland. Claims are not being stayed at present but Liam McGill of O’Hare Solicitors will be assisting with the Employment Tribunal cases where necessary.
A test case from the Police Service of Northern Ireland regarding holiday pay is due to be heard at the Supreme Court. This will determine what is likely to happen in similar cases and as a result no other holiday pay cases are being heard until a decision has been reached.
Branches in Northern Ireland should note however that from 27th January 2020 the ACAS Early Conciliation process will also apply in Northern Ireland prior to Employment Tribunal claims being submitted. Advice about this change can be found on the Labour Relations website (see the following link: https://www.lra.org.uk/Latest-News/early-conciliationcomes-northern-ireland-27-january-2020 )
ONGOING AND NEW CLAIMS
Members who are currently taking annual leave must ensure that ongoing claims are captured. A new claim does not have to be made providing that the leave taken is within three months of the previous period of annual leave.
From 1st April 2020 however those taking annual leave will need to make a new claim in line with the process attached at Annex A which has been drafted in conjunction with the Legal Services Department and Unionline. Branches are encouraged to ensure that the number of these claims is maximised. This is vitally important given the full merits case and consequences stated above. Additionally there is the fact that members will again start taking their first 20 days leave from 1st April 2020 and these claims need to be captured. A previously issued poster advising members to lodge claims for holiday pay is attached at Annex B to assist Branches in their endeavours.
NEGOTIATIONS WITH ROYAL MAIL GROUP
Further meetings were held with Royal Mail Group on 6th November and 5th December 2019 in order to conclude an acceptable agreement for average pay on leave. As previously reported these negotiations are complex and rest on the respective interpretations of whether the pattern of work is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration.
On 27th November 2019 and ahead of the second meeting, the Department received a further closed offer from the business. The Postal Executive considered this proposal at a meeting on 21st January 2020 and rejected the offer as being wholly insufficient. The Postal Executive believe that the formula being proposed by Royal Mail Group is nowhere near as clear as that used to settle cases at ACAS during 2019 and would disadvantage the majority of members.
It is bizarre that whilst many settlements have been made in the past year by the business, the union must still resort to Employment Tribunal(s) to ensure that our members are paid their correct holiday pay entitlement(s). This is against the backdrop of national videos which continue to show Managers from Royal Mail Group on the charm offensive in a futile attempt to get members to turn their back on their union and solely trust the company to look after their best interests.
The actions of the business in relation to the whole issue of average pay on leave only illustrates their true intention regarding how they wish to deal with the union in the future on this and other matters that effect our members’ pay, terms and conditions.
I am confident that our members will see through this smoke screen. I can assure you on behalf of the National Officers and Postal Executive that the union will not walk away from securing acceptable national agreements on the issue of holiday pay and the other challenges we currently face.
In closing, I would like to take this opportunity to thank Branches for their continued support on this matter. Further developments will be reported in due course.
Any enquiries in relation to the content of this LTB should be addressed to the DGS(P) Department.