A tribunal was mistaken in failing to consider the last straw doctrine when concluding there was no repudiatory breach entitling the Claimant to resign and claim constructive dismissal.
That was the decision of the Employment Appeal Tribunal in Craig v Abellio.
The Claimant was a bus driver and had worked for the Respondent since 2014.
He resigned in July 2019 following a period of sickness absence. He alleged that he had experienced numerous problems with his hours and pay, that during his sick leave he had not been paid the correct sick pay and the Respondent had failed to deal with his complaints.
He raised a grievance which was initially rejected and then accepted on appeal. The appeal outcome was to pay the Claimant £6,000 in back pay by a specific date.
The Respondent failed to make payment on time so he resigned claiming this was the ‘last straw’ following a pattern of poor treatment.
The tribunal held that the back pay issue was addressed through the grievance appeal and the missed payment date was a mistake, with neither amounting to a repudiatory breach of contract or a last straw event entitling the Claimant to resign.
The EAT held that the tribunal failed to engage with the Claimant’s factual case on the ‘last straw’ and wrongly considered that the historical pay complaints had been remedied. In doing so it had failed to make appropriate factual findings and apply the principles of the last straw doctrine to the facts. The EAT ordered the case to be remitted to a newly constituted tribunal.
The TUC union federation has denounced the lack of a mechanism to enforce new minimum wages in the ferry industry.
The TUC said on Thursday that Tory government plans will be “unworkable” unless enforcement powers are strengthened.
The TUC pointed out that only the Maritime and Coastguard Agency has the legal right to board ships for inspection to address safety concerns and implement seafarers’ rights. HM Revenue and Customs (HMRC) inspectors, who are responsible for making sure workers are paid the minimum wage, do not have the legal right to board vessels for enforcement.
TUC general secretary Frances O’Grady said, “A lack of enforcement will kick the legs out from under the government’s minimum wage plans. Our weak enforcement regime lets rogue employers like P&O ride roughshod over fundamental workers’ rights. Britain is in the midst of a crisis of enforcement that goes well beyond the maritime industry.
“Ministers must properly fund and empower enforcement bodies so they can recruit and train additional qualified inspectors and inspect more workplaces. That’s how you stop bad bosses from getting away with flagrant labour rights abuses.”
And the Tories let them do it. There are reports that the long-awaited Employment Bill will not be included in next month’s queen’s speech. O’Grady goes on, “If ministers fail to deliver the Employment Bill again, they will be toadying up to bad bosses.”
Pat Harrington, General Secretary of Solidarity commented:
“Of course, trade unionists must organise to ensure theirlegal rights are respected and increased. That is not enough, however. The P&O struggle shows that we must go beyond that and be prepared for more militant and confrontational action against bad bosses. Nor can the trade union struggle be separated from a political dimension. Just as the bosses rely on a near monopoly of political and economic power our challenge must come from both sides.”
“P&O must continue to be punished by a boycott for their anti-worker policies – don’t go P&O. This should go on indefinitely to send a message to bosses that if they mistreat their workers there will be a price to pay.”
The minimal increase of £3 in statutory sick pay (SSP) means the essential financial support is still set “below survival rate,” the TUC has warned.
Wednesday’s rise in SSP to £99.35 a week means Britain’s sick pay, which is not available to those earning less than £123 a week on average, remains among the lowest in Europe, the union body said.
Solidarity and other unions have long called for more generous support to avoid people being forced to work when they are ill.
The problem reportedly led to many workers being unable to afford to self-isolate during the Covid-19 pandemic.
TUC general secretary Frances O’Grady said: “Time and time again we warned ministers that sick pay wasn’t enough to live on.
“After more than two years of the pandemic, it’s inhumane and counter-productive for ministers not to have fixed our broken sick pay system.
“Enough is enough. It’s time for decent sick pay for all — paid at the real living wage so people can pay their bills when they’re ill.”
It should be increased to £330 a week and the earnings threshold abolished, the TUC argued, which would open the scheme to an additional two million workers.
Institute of Employment Rights director Ben Sellers told the pro-worker Morning Star newspaper: “A marginal increase of £3 a week doesn’t begin to address the issue, while many workers fail to qualify for SSP at all.
“Covid has shone a light on how inadequate our sick pay system is in this country, with many workers being forced to go into work while ill, putting themselves and their colleagues at risk.
“Adequately resourcing sick pay works for everyone — employers, workers and the economy.”
SSP, which is not tax free, is available for most employees in Britain from the fourth day they are sick for up to 28 weeks.
However, according to official figures compiled by law firm Compensation Experts, workers in Iceland, Norway, Luxembourg and Denmark receive 100 per cent of their salary when off sick.
Employees in Switzerland get 103 weeks’ sick leave on 80 per cent pay, while their colleagues in Germany receive half pay for 84 weeks.
France and Italy only offer 50 per cent for 26 weeks, while Ireland has no legal minimum sick pay at all.
Workers at Amazon’s JFK8 warehouse in Staten Island, New York in the United States, have voted to form the Amazon Labor Union (ALU). “This is the catalyst for the revolution,” said Chris Smalls, the ALU organiser and president, while celebrating the vote. Amazon sacked Smalls in 2020 during the pandemic for organising a walkout over safety.
The vote—2,654 Yes to 2,131 No, covers over 8,000 workers at Amazon’s largest warehouse in the city. “We want to thank Jeff Bezos for going to space, because while he was up there we were organising a union,” said Smalls. The ALU is a more grassroots union than others that have tried to organise Amazon through endorsements from politicians. Before the vote count, most reporters had dismissed the union’s chances of beating a multimillion‑dollar union-busting effort. .
“I think we have been overlooked,” said ALU treasurer Madeline Wesley. Justine Medina, a member of the ALU organising committee and a packer at the JFK8 warehouse, spoke to the US website Labor Notes. “We studied the history of how the first major unions were built,” she said. “We learned from the Industrial Workers of the World, and even more from the building of the Congress of Industrial Organisations.
Do not be afraid to fight, to get as dirty as the bosses. Do not be afraid to agitate and to antagonise the bosses, as a union should.”
Another warehouse at the same complex on Staten Island, LDJ5, will begin a vote to unionise with the ALU on 25 April. The union also put forward specific campaigning demands including a pay rise to $30 (£23) an hour, more time off and more paid breaks. In contrast to the ALU’s success, a more traditional union—the Retail, Wholesale and Department Store Union — is narrowly behind in the vote at Amazon’s BHM1 fulfilment centre in Bessemer, Alabama. The No vote leads by 993 to 875, but over 400 ballots are contested by either bosses or the union.
The National Labor Relations Board (NLRB) is expected to announce a result soon. Workers there were said to have voted against unionising during their first election in March 2021. The NLRB ruled that Amazon bosses interfered and ordered a new vote. The victory at JFK8—and unionising successes at six branches of Starbucks in recent weeks—should encourage more militant organising. And where unions are formed, they have to immediately start fighting for real change.
Patrick Harrington, General Secretary of Solidarity, commented: “We need to study what is happening in the United States where unions are winning ground. The Amazon success could be just the start within the firm. Starbucks is another anti-union corporation. Yet in In 2021, a store in Buffalo, New York became the first American shop to unionize since the 1980s. In 2022, 9 additional stores voted in favor of unionizing. The first union vote in Starbucks’ hometown of Seattle was unanimously in favor of the union. Hundreds of stores across the country are awaiting union votes. The Starbucks example shows how unionisation can spread.”
On Monday, UK transport secretary Grant Shapps said a “package of measures” will block P&O Ferries’ plan to replace sacked seafarers with agency workers paid below our country’s minimum wage.
In a letter to Mr Hebblethwaite, P&O chief executive, Shapps wrote: “I will be bringing a comprehensive package of measures to Parliament to ensure that seafarers are protected against these types of actions in the way that Parliament and this Government already intended. “Through that package, I intend to block the outcome that P&O Ferries has pursued, including paying workers less than the minimum wage.”
Mr Hebblethwaite, whose basic annual salary is £325,000, told MPs last week the average pay of the agency crew is £5.50 per hour.
Commenting on this TUC General Secretary Frances O’Grady said: “Closing the loophole that lets rogue employers pay less than minimum wage at sea is long overdue. But it is just half a step forward.“Ministers must make sure that P&O staff are reinstated on their previous pay – a union-negotiated rate that is significantly higher than the national minimum wage. “And if ministers are opening up the possibility of legislative change, then they should bring forward their long-promised employment bill, to outlaw fire and rehire and root out bad employers across the economy.”
Patrick Harrington, General Secretary of Solidarity, commented: “It remains to be seen how successful the legal and political approach adopted by the main unions involved will be.
There are signs of some significant gains. The sacked workers, however, have largely signed the redundancy agreements complete with gagging clauses.
The “enhanced” packages included compensation for their refusal to consult workers and trade unions on the redundancy plans. But they threatened to leave workers with only the bare minimum statutory redundancy payments if they didn’t accept the package in a few days.
It was effectively blackmail designed to force workers to give up the fight to get their jobs back—and get around the law. It seems to have worked although P&O will pay a price down the road.
Some have argued that the ports should have been immediately blockaded by our unions and I have some sympathy for that viewpoint.
The Rail, Maritime and Transport (RMT) union staged a protest outside a Glasgow recruitment office which was reportedly involved in hiring staff to replace sacked union members on P&O’s ferry routes.
The demonstration took place at the offices of Clyde Marine Recruitment, Govan Road, Glasgow. MSP Richard Leonard was in attendance to show his “support and solidarity” with the fired workers, who were replaced with cheaper agency staff.
Speaking to STV News, the former Scottish Labour leader said: “We’re here this morning because Clyde Marine Recruitment, a firm based here in Glasgow, is now playing a part in this P&O dispute and we are here to call on them to take a step back, not to get involved.“Don’t go down in history as being part of one of the most ferocious attacks on working people that’s ever been conducted in this country.”
In response, a spokesperson for Clyde Marine Recruitment said:“Clyde Marine Recruitment had no prior knowledge of P&O’s plan and, having worked with P&O for close to four decades, we fully appreciate the anger being felt by all of those affected.“Several days before the announcement, Clyde Marine Recruitment were advised by P&O that they required an additional 18 crew for a specific vessel. Such requests are not unusual.“ A further 23 crew were requested by a third-party crew manager, International Ferry Management, for a ro-ro ferry management project requiring UK seafarers. This is nowhere near the 800 crew we have been wrongly accused of providing. “Clyde Marine Recruitment has assisted in finding over 15,000 positions for UK domiciled seafarers over the past five years, with every member of staff paid UK market rates.”
Patrick Harrington, General Secretary of Solidarity, commented: “In fairness to Clyde Marine Recruitment it may be that they did not know the full facts and that they were duped by P&O.
They certainly know what is going on now though and can respond as any decent organisation or company would by not providing scab labour.“
Talks between RMT and P&O broke down because the company was “simply unprepared to change course from the illegal dismissal of 800 seafarers,” according to the union.
RMT General Secretary Mick Lynch said:
“From the outset the full obnoxiousness and hostility of the company towards their staff and the RMT was on display.
“P&O were not prepared to listen to any scenario or develop any idea that would provide a means to create a solution to the current disastrous situation.
“The meeting broke up inside 20 minutes as P&O were simply unprepared to change their course from the illegal dismissal of 800 seafarers.
“RMT will continue to press the government for an immediate intervention by whatever means necessary to make P&O perform a U-turn and get our members reinstated, as per Transport Secretary Grant Shapps’ statement on BBC this morning.
“We also call on the entire labour movement, the public, the freight & logistics sector and the political community to support an immediate and total boycott of all P&O services.
“The people of the UK need to pull P&O to account and make sure that the law in the workplace is upheld, that British workers can have job security and decent pay, and that P&O workers get workplace justice.”
RMT has also launched a campaign of action against P&O’s supply chain and will hold a protest at Clyde Maritime Recruitment in Glasgow on Monday.
P&O is encountering resistance as some newly recruited crew members reportedly walked off P&O vessels when they discovered how they were being used as scab labour.
A recruitment agency is offering sacked marine officers £20,000 to take back their old P&O jobs because the company has been unable to fill them.
Coupled with the ferry firm’s need to train its new recruits in vital work including safety and rescue, the shortage of officers threatens to torpedo any hopes P&O had of getting all its ferries back into service in the immediate future.
Seven vessels are reported to be standing idle, costing P&O around £1 million a day, including the Pride of Hull ferry in Rotterdam.
Shameless P&O chief executive Peter Hebblethwaite admitted to a panel of MPs this week that the company knowingly broke the law by sacking the workers — and said he would do it again.
Transport Secretary Grant Shapps, backed by PM Boris Johnson, said he should quit following his “brazen” comments to the joint business and transport committee.
RMT has also demanded that the Scottish, Welsh and Westminster governments kick the firm’s Dubai-based parent company DP World out of “freeport” tax havens in Britain.
Freeports are protected from taxes and duties which apply in other ports.
DP World is involved in English freeports in the Thames and Solent. In Scotland taxpayers are expected to provide £25 million funding towards establishing a freeport and another is being planned for Wales.
RMT general secretary Mick Lynch said the three governments “must state that they will exclude DP World from the public funding and tax breaks that come with freeport status, unless our members are reinstated by P&O Ferries.”
TUC general secretary Frances O’Grady said it was a “watershed moment” for Britain’s shipping industry and workers’ rights.
She said DP World “must be given pariah status and lose all its government shipping and freeport contracts with immediate effect until workers are reinstated.”
Don’t go with P&O
The RMT has called for members of the public to show their revulsion at P&O’s behaviour by boycotting the company’s ferries under the slogan “Don’t go with P&O.”
As the CPBML rightly said: “all we can do is fight like our trade union ancestors. This is an attack on whole communities in our coastal towns. This will be a fight led by the trade unions in the shipping industry, but it will be supported by whole communities and the trade union movement.”.
Patrick Harrington, General Secretary of Solidarity, said: “P&O must be punished for their attack on British workers. We must break them. Those agencies supplying workers to P&O should also think carefully about the possible consequences to them. British workers need to ensure that their power is felt.”
Employers need to work with Solidarity on their Well Being policies
Solidarity union cares about the mental health and wellbeing of its members and other workers and employees in the workplace. That’s why our National Executive has launched a campaign to ensure that Employers meet their duty of care. We will be contacting employers to raise health and safety issues with them and offer help to improve their policies and procedures. We are also gathering information on Health and Safety issues directly with employers and via Freedom of Information requests.
Do you have a health and safety issue in your workplace? Contact us at solidaritygb@aol.com
The Chancellor made his annual Spring Statement speech this week where he set out the Government’s tax plan.
Rishi Sunak: optimistic that wind break measures will shield us from economic gales
Key measures the Chancellor announced as part of the plan include:
• an increase to the National Insurance Primary Threshold for Class 1 NICs and the Lower Profits Limit for Class 4 NICs from 6 July 2022, aligning it with the equivalent income tax personal allowance which is set at £12,570 per annum
• from April 2022, self-employed individuals with profits between the Small Profits Threshold (SPT) and the Lower Profit Limit will not pay Class 2 NICs, while allowing individuals to be able to continue to build National Insurance credits
• the Employment Allowance will be increased by £1,000 from 6 April 2022 to £5,000, which will benefit around 495,000 businesses
• an immediate reduction in duty on diesel and petrol from 6pm on 23 March 2022, by 5 pence per litre, for 12 months.
The full detail on all the measures, some of which are subject to parliamentary approval, can be found on GOV.UK.
Consumer champion, Martin Lewis, said the increase in the national insurance threshold would be a tax cut for those earning under £35,000 a year.
Citing the Institute for Fiscal Studies, Lewis said the “break even” annual salary would be £35,000, meaning anyone earning less than that had been handed a tax cut.
“From July, if you earn £35,000 or less, you will pay less national insurance than you do currently on the same income.
“For those at the lower end of the scale it could be a good few hundred pounds.
“If you earn £35,000 or more, than you will pay more national insurance than you do currently.”
Pat Harrington, General Secretary of Solidarity had this to say on the Spring Statement:
“Of course, our union welcomes some of the measures announced.
Are the measures announced enough to protect the incomes of working people? No, is the simple answer.
It’s worth noting though although Sunak raised the point at which workers will start paying national insurance to £12,570 a year that won’t come into effect until July, while rates go up 1.25 percentage points in April.
Hours before Sunak made his statement, official figures showed the RPI rate of inflation — the most accurate one — had risen to 8.2 percent. If your pay or benefits are going up less than that, then you are facing a cut. Then there is also the looming threat of massively increased energy costs.
That means that even workers who’ve managed so far and could afford expenses will take a hit. Your car breaks down, your boiler needs a repair, your landlord kicks up the rent or your mortgage goes up — suddenly it’s hard to find the money. And we know that few people have anything much in a ‘rainy day’ fund.
Those who point to a new £500 million fund for councils to help the poorest cope should remember that the inflation-driven, real-terms cut in benefits equates to £12 billion.
How have we got to this point? The vast debt run up by the UK Government during the pandemic is a big part of it. In 2022-23 alone, the UK is forecast to spend a staggering £83 billion just on paying off the interest – the highest figure on record. Your union believes that the reaction to the Pandemic was disastrous, and that the government panicked and had no real plan. The unions should have been involved in planning from the start.
We must look at how to deal with this crisis on many different levels including the personal and union ones.”
There can’t have been many of us who weren’t shocked by the abrupt sacking of 800 British employees of P&O on Thursday.
The announcement by a recorded video message was a cruel way to deliver the news to the company’s loyal workforce. Union reaction to this outrageous act of throwing British workers onto the scrapheap was swift with the RMT’s Mick Lynch saying: “We are receiving reports that security guards at Dover are seeking to board ships with handcuffs to remove crew so they can be replaced with cheaper labour. We are seeking urgent legal action and are again calling for the government to take action to stop what is fast turning into one of the most shameful acts in the history of British industrial relations. If this happens at P&O, it can happen anywhere and we are calling for mass trade union and wider public mobilisation and protest against the company.”
Nautilus General Secretary Mark Dickinson weighed in with: “The news that P&O Ferries is sacking the crew across its entire UK fleet is a betrayal of British workers. It is nothing short of scandalous given that this Dubai-owned company received millions of pounds of British taxpayers’ money during the pandemic. There was no consultation and no notice given by P&O. Be assured the full resources of Nautilus International stand ready to act in defence of our members’ best interests to stay onboard until further notice.”
Manuel Cortes of the TSSA stated: “In any civilised country these actions would not only be unlawful but punishable in the harshest possible terms. Sadly, I doubt the Tory government will lift even their little finger to ensure this happens.”
Workers magazine commented: “Remember when workers were told that the call for British jobs for British workers was a racist demand? So, what is it when the entire British workforce is sacked without notice over a Zoom call in order to replace them with a lower-paid foreign workforce?”
Solidarity stands four square behind the P&O workers that have been so disgracefully treated by the Dubai owned company. It is scandalous that employees with in many cases a long history of service can be just unceremoniously dumped by an employer.
Unless the decision if reversed when booking any trips by sea we must be sure that this company is not one that we ever use.
P&O Ferry Picture by Fabian318, CC BY-SA 3.0, via Wikimedia Commons
