“The opening paragraph lays a charge against Unite of ‘failure as an employer to discharge its Duty of Care.’ This is completely wrong and has to be challenged. I see this as an implied criticism against the left leadership of our union, both its General Secretary and the Left Executive Council. Let me briefly explain that this union did act correctly in dealing with a situation that was becoming toxic at Heathrow Airport.”
This was the opening shot in an e-mail from Unite General Secretary Len McCluskey read out at last Saturday’s Annual General Meeting of the United Left, the ‘broad left’ in Unite the Union.
The object of McCluskey’s ire was a motion which proposed various initiatives to promote a feminist agenda in the United Left and in Unite. Its crime was that it opened with the words:
“This AGM notes with concern the outcome of the Nailard v Unite legal proceedings especially the findings concerning gender-related harassment by male lay reps of a female union employee and the failure by Unite as an employer to discharge its duty of care.”
The version of events provided by McCluskey in his e-mail begins with the claim: “Shop stewards were suspended and an investigation took place to try to resolve the differences and difficulties.”
But the two “shop stewards” in question – in fact: a Heathrow Airport convenor and a Heathrow Airport branch chair – were not suspended. The unchallenged findings of the Employment Tribunal judgement (source of all quotes in this article, unless otherwise indicated) were:
“(Unite full-timer) Mr. Kavanagh sought advice from (Unite Chief of Staff) Mr. Murray, suggesting a course of action which included a suggestion that ‘allegations are serious enough to warrant suspension.’ Mr. Murray said that Mr. Kavanagh should not suspend at this stage.”
The convenor was never suspended. The ET found this “of interest” given that “the claimant (Nailard) had not only made allegations of gender discrimiantion but also of relatively severe bullying and harassment which is accepted as having occurred.”
Eventually, the branch chair was briefly suspended, but apparently only because he refused to participate in the investigation:
“The branch secretary did not initially co-operate with the investigation although there were a number of attempts to speak to him. … Mr. Hughes (Unite full-timer who carried out investigation) recommended that he should have his union credentials suspended and be charged under Rule 27. This was done and may have prompted him to agree to be interviewed.”
The investigation concerned a grievance lodged by Sally Nailard, a Unite full-timer whose remit included Heathrow Airport. The issue of gender-related harassment was central to her grievance. For example:
“I have been subjected to treatment which I believe constitutes bullying and harassment, much of this treatment I believe is as a consequence of my gender. It is very evident to me that the convenor has an issue with me as an officer on the grounds of my gender. Other members of the negotiating committee believe that his treatment of me is gender-related.
At a meeting last week I was subjected to derogatory sexual comments by the branch chair. [He dropped his pen and said] ‘I don’t want to go under the table in case I am accused of looking at Sally’s fanny.’ [After picking up the pen he said] ‘It’s okay, she has 1,000 denier passion killers on.’
This is not the first time that he has made what I deem to be inappropriate comments of this nature. During all the time I have worked on the airport I have never been treated in such a blatantly sexist manner.”
Nailard gave further examples of gender-related harassment when interviewed in the course of the investigation. These included being called “a headmistress”, a comment by the convenor that he wanted “that woman” off the airport, and comments such as “women always want to be in charge” and “it must be the time of the month”.
This investigation was not, as claimed by McCluskey in his e-mail, “an investigation to try to resolve the differences and difficulties.” It was a investigation triggered by a grievance lodged by a female employee about gender-related harassment.
(There was, it is true, a later and separate investigation conducted by Unite full-timer Steve Turner into the more wide-ranging and structural problems in Unite in Heathrow Airport. But “this did not touch directly on the problems that the claimant had faced in the past and was likely to face in the near future.”)
McCluskey’s e-mail also fails to mention the outcomes of the investigations into Nailard’s grievance.
The investigation into the convenor’s misconduct concluded: “I don’t believe there is a case for him to answer.” In his evidence to the Tribunal the investigating officer stated that the convenor had not “crossed the line” into committing acts of gender discrimination.
The ET expressed its surprise that “Mr. Hughes found that there was no case to answer. The gender-specific phrases used by the convenor are clearly related to gender and were meant to be and were disparaging. We find that his treatment of the claimant was influenced by discriminatory motives.”
The investigation into the branch chair’s misconduct concluded: “I believe that this (the ‘dropped pen incident’) is a one off incident and I don’t believe it will be repeated. He is clearly sorry for any offence he may have caused.”
Despite all the evidence provided by other witnesses, the branch chair had denied having used the word “fanny”. Despite all the specific examples given by Nailard, the branch chair had declared that it was “not in his nature” to offend Nailard.
The chair’s wife subsequently sent Nailard a letter, “purportedly” (ET judgement) from her husband, in which he failed to accept that he had made offensive remarks, but nonetheless apologised for any offence caused. His wife also e-mailed Chief of Staff Andrew Murray, asking for her husband’s union credentials to be restored.
Nailard refused to accept the apology, and it was not even clear if the letter in question had been written by the branch chair or by Unite full-timer Steve Turner. In any event, Murray immediately lifted the suspension of the branch chair’s credentials, and no further action was taken.
The ET’s overall findings on how Unite full-timers dealt with Nailard’s grievance were:
“We find that it (Unite) did fail to support the claimant with respect to the behaviour of these elected officials. The claimant (Nailard) has shown that no findings were delivered to her, that no effective resolution or effective protection was provided, and that the respondent (Unite) failed to take disciplinary action under the Rulebook against those responsible for the harassment.”
The judgement of a subsequent Employment Appeal Tribunal (EAT) hearing likewise stated:
““The ET upheld the claimant’s claim of constructive unfair dismissal. It found that the failure to deal firmly and decisively with the individuals concerned was a breach of the implied term of trust and confidence. There is no appeal against the finding of constructive dismissal itself. The claimant is therefore on any view entitled to compensation for unfair dismissal.”
And the judgement of a subsequent Court of Appeal hearing also stated:
“The ET found that although the Union acknowledged that the claimant was, as Mr. Kavanagh put it in a contemporary e-mail, subjected to ‘a sickening and orchestrated campaign of harassment including bullying and even sexual harassment’, it failed to deal with it firmly or decisively. For convenience I will refer to that failure as their ‘inaction’, although that label slightly overstates the position since the Union did take some steps, albeit inadequate.”
All of this is absent from McCluskey’s e-mail. And unsurprisingly so. The findings of the ET, the EAT and the Court of Appeal are impossible to reconcile with McCluskey’s claim that “this union did act correctly”.
Central to the factual findings on which the ET relied in finding unfair constructive dismissal was Unite’s failure to deal properly with Nailard’s grievance about gender-related harassment. From both a legal and a common-sense point of view, that counts as a failure by Unite, as Nailard’s employer, to discharge its duty of care.
Having skipped over the key issues before the Tribunal, McCluskey’s e-mail jumps to the threat, probably by an ex-TGWU-member, to circulate a video containing a clip of Nailard, dating from 1997, when she was a member of the breakaway “Cabin Crew 89” union and opposed a strike of cabin crew staff organised by the TGWU.
McCluskey’s e-mail continues:
“It was the view of both myself and Peter Kavanagh that this was likely to make life difficult for Sally and, in her best interests and with a strong sense of a Duty of Care, it was best for her to be placed elsewhere.”
But if Unite full-timers had such a “strong sense of a duty of care”, why did this not manifest itself in relation to Nailard’s repeated and longstanding complaints of gender-related harassment?
And how is it possible to reconcile Nailard’s demonstrable success in claiming unfair constructive dismissal with the claimed display of a “strong sense of a duty of care” by her employer?
McCluskey’s e-mail continues:
“The ET accepted Peter Kavanagh’s explanation that he moved Sally Nailard to safeguard her but quite uniquely maintained that the union are responsible for the actions of Workplace Representatives regardless of the fact that we do not have an employer/employee relationship with those workplace representatives.”
There is something almost magnificent in the way in which McCluskey has managed to confuse so many issues of fact and so many issues of law in so few words.
On a fine point of law, the ET found that Kavanagh’s explanation of his decision to transfer Nailard from Heathrow to Southampton was “tainted by sex” (i.e. discriminatory). On an even finer point of law, this was overturned by the EAT. The Court of Appeal agreed with the EAT.
(Apart from Wayne King, who makes only fleeting appearances in the ET judgement, Kavanagh, it must be said, is the only full-timer to emerge from the legal proceedings with any credit.)
The ET did indeed find that workplace representatives are, in legal terms, employees of their union (or, failing that, agents of their union). But this was irrelevant to its legal interpretation of Kavanagh’s decision to transfer Nailyard. Kavanagh is a full-timer, not a workplace representative.
In any case, both the EAT and the Court of Appeal overturned the ET’s finding that workplace representatives are, in legal terms, employees of their union. But they both agreed that workplace representatives are agents of their union.
That legal finding has enormous legal (and financial) implications for trade unions. It may be the subject of an appeal to the Supreme Court. But it is irrelevant to the more basic facts:
An employer (Unite) failed to protect an employee (Nailard) from gender-related harassment, and the employee went on to win a claim for unfair constructive dismissal. In a nutshell, and in everyday language, the employer failed to discharge their duty of care.
The Nailard of McCluskey’s e-mail is not a victim of “‘a sickening and orchestrated campaign of harassment including bullying and even sexual harassment, (which) Unite failed to deal with firmly or decisively.”
Instead, she is portrayed as a woman driven by ulterior motives. According to the e-mail: “It has since become clear that Sally had other motives that had been planned for some time and she set out to try to secure a payment from the Union.”
McCluskey’s e-mail closes with the lament: “It is regrettable that left comrades would submit a motion such as this without first seeking an explanation from the leadership or executive.”
Given the abyss which separates the contents of McCluskey’s e-mail from the factual findings of the Employment Tribunal, those left comrades were clearly correct not to look to Holborn for a ‘correct’ interpretation of the legal proceedings.