Representing Members: If only they had listened to our member

In the latest column from our activists, we hear from a branch rep about an unusual legal case that ended in a ruling of unfair dismissal, a £19,000 pay out and a reinstatement order for a sacked PCS member.

Significantly, the Employment Tribunal concluded that the court officer was covered by disability discrimination under the Equality Act because of her severe peri-menopausal symptoms, which affected her at work.

Scottish Courts and Tribunals Service (SCTS) branch secretary Brian Carroll, who dealt with the case at workplace level, told Activate that the employer had failed to listen to the member and their actions were “fatally flawed” from the start.


Dealing with members’ issues at work is a continual learning curve, and things certainly entered unexplored territory when longstanding PCS rep Brian Carroll took on member Mandy Davies’s case.

Ms Davies was dismissed for gross misconduct following an incident in a courtroom in February 2017. That day she said she’d been suffering severe menopausal symptoms including very heavy bleeding that required frequent trips to the toilet, profuse sweating and anxiety, as well as a related bout of cystitis for which she was taking medication that had to be dissolved in water.

After leaving court during an adjournment she returned to find the water jug on her desk had been emptied and a pencil case, which she believed contained her medication and sanitary products, had been moved. She told a subsequent disciplinary hearing that she’d become flustered and panicky and couldn’t remember if she had put medication into the water or not.

On returning to court, Mandy noticed two men drinking water and she approached them, concerned that their water may contain her medication. A confrontation ensued, in which one of the men effectively accused her of trying to “poison” them.

It later transpired the water had not contained the medication, and the employer went on to accuse Ms Davies of lying to the men and SCTS management. They claimed she knew all along it had not contained the medication – which turns water pink – but the ET judge said management “had no reasonable grounds upon which to sustain their belief the claimant lied”.

The tribunal judge ruled that Ms Davies had been unfairly dismissed and should be reinstated. She was awarded £14,009.84 to compensate for lost earnings, and a further £5,000 for injury to feelings because her dismissal was due to something arising from her disability under section 15 of the Equality Act.

How did the rep approach the case?
Brian says when he first took on the case, he immediately spotted flaws in the way the employer had dealt with their initial investigations. A post-incident interview with the Health & Safety team, which was described to the member as having a “wee word”, went “way beyond its remit”, he said. The ET judge went on to agree with the rep’s view, saying that the manager had “made assumptions and reached conclusions far outwith his remit” by conducting what amounted to a disciplinary investigation.

“The fact that there were two managers involved in that ‘wee word’ rang alarm bells for me. If there are two people it’s usually more than an informal chat,” said Brian.

“And if it’s more than that, the member should be given the right to be accompanied. Health & Safety should be investigating if there was any danger of harm to anyone, but that’s as far as they should go. They should not – as they did in this case – go on to comment about the member’s character or give a recommendation as to whether they should be disciplined or not.”

At this point Brian’s primary focus was on whether SCTS had followed the correct policies and procedures: “That’s what was at the heart of it then. The whys and wherefores were not as much of a consideration for me at that stage,” he said.

“It’s fundamental when employers have policies and guidance in place, which either follow employment law and/or the Acas Code of Practice, that if they don’t follow those policies there could be a fatal flaw in procedure.

“In the civil service, you find a lot of policies and procedures actually exceed what is recommended as a minimum, because they have been negotiated by union reps on behalf of members.

“As a rep you have to use all the resources available to you to make a case on behalf of the member you’re representing. Whether it’s your organisation’s policy and guidance, or any resources that are supplied by the union,” he said.

By the conduct and discipline stage, a local rep was shadowing Brian, as part of the branch’s drive to help newer reps learn how to represent members. She and Ms Davies conducted extensive online research on the symptoms of the menopause and the impact they can have.

“Don’t forget that one of the best resources you can use is the member themselves, to provide information that you can use on their behalf, in supporting a case, in mitigation or in countering allegations made,” said Brian.

“I also asked Ms Davies to get a doctor’s letter, notes and any other supporting documentation about her medical condition that she could provide. It became obvious she was suffering very severely from symptoms of the peri-menopause that could affect the way she behaved.”

An occupational health report confirmed she was suffering from symptoms including heavy bleeding, stress, anxiety, palpitations, memory loss, and severe anaemia causing tiredness, light headedness and fainting, but was fit for work with adjustments.

Brian had raised Davies’s severe symptoms as a mitigating factor that affected her day-to-day abilities, but says he hadn’t initially considered her condition could be classed as a disability until the union’s lawyers became involved.

He said he felt he had learned something new through the case: “To think that women suffering these symptoms are able to function as they do, is unbelievable,” he said.

He said they had provided SCTS with a two-page document and other information containing sources of information on the menopause and its effects, such as memory lapses and trouble concentrating, which all directly related to Ms Davies’s case.

“When I read the final ET judgment it seemed they had taken all that on board. These were all things we had brought to management’s attention – if only they had listened.”

• SCTS are appealing the reinstatement aspect of the ET judgment. While the case is pending Ms Davies has not returned to work.


LEARN MORE:
The TUC is running one-day workshops on the menopause at work, at various locations between September and November. They are working with three universities to explore the issues women are having and discuss how unions can support them. Click here to apply.

PCS AND THE MENOPAUSE AT WORK:
PCS is campaigning to ensure fair treatment for members on all issues around the menopause and work.
Resources: See PCS Equality.
More info: Tackling ignorance about the menopause and work.

MORE ON THIS CASE:
Read the full Employment Tribunal judgment on Mandy Davies’s case here.

GET IN TOUCH:
Do you have an interesting case that fellow reps would want to hear about? We want to share your success stories, learning experiences, dilemmas, tips and guidance. Read more about what we’re looking for here. Please send brief details to organising@pcs.org.uk – with the subject heading ‘Activate - Representing Members’ – and we’ll get back to you.

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