A landmark year for our lawyers

                                                                         Royal Courts of Justice © Alena.K/Bigstock

2021 has been another significant year for UNISON’s in-house legal team, with victories in the highest courts of the land, challenging the principles and laws that dictate the lives of workers in general, alongside hundreds of smaller cases in which they represent the union’s members and families with their individual problems.

While ‘normal’ life has easily been forgotten for many during nearly two years of pandemic, the small team has remained vigilant and determined, in the knowledge that workers’ rights are always under threat.

                                                                                             Adam Creme © Ralph Hodgson

Adam Creme, UNISON’s director of legal services says: “As 2021 has been a difficult year for the workers UNISON represents, it has been more important than ever that the union challenged bad policy and bad practice. The legal successes this year show how UNISON puts its money where its mouth is in supporting and pushing forward employment rights.”

Here are just some of the achievements in the past 12 months.

February – Pensions

The legal team kicked off the year with a decisive blow to the Westminster government, forcing it into abandoning its Exit Cap Regulations, which had only been introduced the previous November.

The regulations were designed to cut big pay outs to the highest paid public servants when they were made redundant, setting a ‘cap’ of £95,000. However, in practice, the way they were introduced meant that moderately paid staff could also be caught up by the law. In particular, it would have affected those in the local government pension scheme (LGPS) who were made redundant over the age of 55.

UNISON and other unions made a legal challenge. But before that was due to be heard – and just as we were finalising our evidence – the government backed down, disapplying the regulations, with a view to revoking them completely because of the ‘unintended consequences’.

As assistant general secretary Jon Richards pointed out, the government realised that “our cause was just and it was going to lose.”

March – NHS holiday pay

In March, after a long campaign of legal challenges and behind the scenes negotiation, UNISON won back payments totalling at least £124m for its health members due to miscalculated holiday pay.

NHS employers had been failing to take account of regular overtime when making holiday pay calculations, which had been leaving many members underpaid for years.

It was a mistake rather than a deliberate oversight, but one which UNISON identified and addressed. After exploring the issue with ambulance branches – whose members frequently work overtime, often in response to emergencies – the legal team initiated the claim East of England Ambulance Service NHS Trust v Flowers and others.

As with so many cases with wide-ranging impact, it ping-ponged around the courts, culminating in the employer appealing a decision to the Supreme Court, the final court of appeal in the UK.

UNISON legal officer Jeanette Sainsbury, who ran the case says: “The significance of the claim and the cost implications of our members succeeding at the Supreme Court, particularly given the many other claims spawned by the East of England case, proved to be the incentive for the NHS employers to come to the negotiating table”.

The result was a framework agreement which acknowledged that employers should include regularly worked overtime and additional standard hours (for part-time staff) in the calculation of pay when staff are on annual leave. Since then, trusts have been busily correcting underpayments for two full financial years, 2019-21.

Roz Norman, the chair of UNISON’s health service group executive, commented: “This is a good example of UNISON identifying a problem, then using the law, using organising, using members’ stories to get money into people’s pockets.

“Six years of legal pressure meant that when we got to national talks we had hundreds of tribunal claims behind us – that was our leverage.”

June – Defending the rights of strikers

UNISON’s achievement in bringing UK law into line with Article 11 of the European Convention on Human Rights marked an important step in recognising an individual worker’s right to strike.

UK law had previously prevented employers from sacking staff involved in strike action or other union-organised workplace disputes, but not from disciplining them or otherwise making their lives difficult.

UNISON decided to remedy this loophole, by representing care worker Fiona Mercer against the North West-based charity Alternative Futures Group (AFG).

Ms Mercer had been involved in organising UNISON’s long-running dispute over AFG’s plans to cut payment for sleep-in shifts undertaken by its care staff. As a result she was suspended, prevented from going into work by her employer and disciplined.

AFG’s heavy-handed tactics also deterred some workers from taking part in the strike action.

Although losing at tribunal, the union supported Ms Mercer’s win at the employment appeal tribunal (EAT) in March. The EAT president said that UK law was not in compliance with international law, and therefore added wording to the Trade Union Labour Relations (Consolidation) Act 1992 to the effect that striking workers are now protected.

Commenting on the EAT decision at the time, UNISON general secretary Christina McAnea said: “Good employers have nothing to fear from today’s judgment. But those who’ve been treating staff unfairly because they’ve taken strike action will need to beware.”

UNISON legal officer Bruce Robin adds: “Article 11 relates to freedom of assembly and association, which is an integral part of what it means to be a trade unionist.

“Mercer is the first case of its kind, and it creates a legal right to protect workers in industrial action that never existed before.”

October – Personal injury claims

For the 12 months from October 2020 to  October 2021, the union’s lawyers secured an extraordinary £27m in personal injury settlements for members and their families, across 2,109 cases.

These would be for claims including lifting injuries, workplace assaults, industrial diseases, bullying and stress and, outside of work (including for family members), road traffic accidents.

Helen Buczynsky, UNISON’s legal officer who coordinates the union’s external legal service, says: “In view of the challenges we’ve faced with COVID, I think that the fact that we’ve continued the service – and not only continued it, but had a fantastic year – represents a real milestone.

“Our members deserve a strong safety net when they have suffered a personal injury at work, and that is where we come in.”

In the first six months of 2021, the external legal service also assisted over 2,500 members wanting initial, free legal advice on non-work issues, supported over 250 members defending work-related criminal allegations, helped nearly 1,000 members with their wills and over 150 with conveyancing.

Defending access to justice

This year also saw UNISON defending access to justice for its members, by holding back the government’s attempts to change what is called the small claims limit.

If a claim is for a sum below that limit, the claimant will not receive legal costs, even if successful, making it very difficult for them to get legal representation. The limit had been £1,000 for more than 20 years and to increase it would, in effect, deter normal working people from claiming for their personal injury.

The government has been attempting to do exactly that for a decade.

This year it did raise that figure, to a massive £5,000 for road traffic accidents. But UNISON’s campaigning – working alongside the Law Society, other unions, and even insurers –  prevented the same from happening to workplace injury claims, where the limit will now only increase to £1,500, and not until April 2022.

Helen Buczynsky, who spearheaded the campaign, says: “We’ve managed to  delay it, then managed to reduce it, and hopefully they will never bring the same change in for workplace cases. It’s of huge significance.

“This is an ongoing fight to keep access to justice as open as possible. It’s one that we’re constantly battling with government about, because they never go away. We have to be constantly vigilant.”

Ongoing benefits… in the millions

A successful case’s effects aren’t always restricted to the individuals involved.

In 2018 UNISON took on tribunal claims for nearly 500 school staff with Greenwich Council, the majority of whom were women, arguing that their holiday pay was being calculated incorrectly because of their part-time status.

The council agreed to revise the formula used to calculate the holiday allowance, backdating the correct pay five years, arriving at a settlement worth £5m.

But that was just the start.

“What the case in Greenwich highlighted was a particular flaw that was likely to happen in lots of local authority employers’ calculations around the country,” says Bruce Robin. “Not only that, private employers like academy chains tend to follow local authority calculations for holiday pay.

“There are a quarter of a million UNISON members employed in education, and we knew that a lot of those were potentially affected by the issue.”

And so, for the past three years, national education offer Ben Thomas has been working with regional colleagues to identify more problem areas, with Bruce Robin overseeing thousands of claims. “Many employers will put their hands in the air and say, ‘We got it wrong, what can we do about it?’ And so we reach an agreement,” he says. The result so far has been settlements totalling £55m.

                                                                 Shantha David © Steve Forrest/Workers’ Photos

Reflecting on the year, UNISON’s head of legal services Shantha David says: “UNISON’s legal services are one of the key reasons our members join the union, and I am proud to say that as a strategic legal team we have had many successes for our members.

“However, we haven’t rested on the laurels of those victories. We have responded to the myriad of COVID-related legal issues, with our focus on ensuring the protection of workers’ rights during this pandemic. We have also continued to push the boundaries of law to benefit members’ rights.

“I want to pay tribute to our members who fight these cases and lend their names to ground-breaking legal decisions. Their bravery paves the way for other members, in their admirable public-facing roles, to have safe, fair and fulfilling working environments.”

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