Author: Paul

Please see above and below
Circular No: NCP/009/18
Our Ref: LA/01/2018
17TH January 2018

To: Branches, Regional Councils & Regional Offices
Dear colleague,
New Year Legal Update
1. Helplines Numbers and Update in L2 form
RMT Helpline – 0800 376 3706. England and Wales.
In Scotland and Off Shore members the number has changed to: 0808 068 5529
This is for advice on all work and non-work related and Union matters.
The lines are open 8:00-18:00 hours Monday-Friday, 9.30-16:00 hours Saturday.
Or email: info@rmt.org.uk
Criminal Helpline – 0765 911 8181
Criminal Helpline (Scotland & off Shore members) – 0800 089 1300
Personal Injury Claims
This service covers:
• RTA accidents to and from work where the member is injured, this also covers family members;
• accidents at work claims for members only;
• industrial disease claims for members only;
• non work related accidents for members and their families;
• Clinical negligence is not covered by the scheme but members can use the numbers below to get expert general advice.
The service is accessed
In England and Wales by calling 0845 712 54.
In Scotland and Off Shore members by calling: 0800 022 4224
In Southern Ireland should complete an L1 form available on line or from their Branch Secretary and submit to the Legal Department.

Up to date Employment Assistance Form (L2). Should a member require legal assistance for an employment tribunal, they need to fill in an L2 form and pass this with the relevant documentation as quickly as possible to their Regional Organiser. Amended L2 forms have been produced and circulated to Regions. All old L2 forms should be destroyed. The form is accompanied by a checklist for the region and member to enclose the relevant documents and a declaration form which our legal team will require before they can deliver advice. We will not accept instructions on old L2 forms. All Legal Forms are also available from the RMT website.
Legal representation is not automatic. Unless/until legal representation is granted the member remains responsible for lodging ACAS conciliation and ET1 claim form within the time limit and keeping all Tribunal and Court dates.

2. Potts & others v Nexus –Unlawful Deduction of Wages

The Union have recently been successful in this important case. Judgment being handed down this week. The member’s conditions of service are governed by the Nexus collectively agreed Conditions of Service.
Employees who work shifts are entitled to shift allowances, and the allowances are calculated with reference to “basic pay”.
Pay discussions took place in 2012. Nexus offered to consolidate a £200 Red Book bonus into basic salary and also to consolidate a productivity bonus into basic pay. This had the overall effect of increasing basic pay. Nexus said that the offer had to appear cost neutral. There was no discussion about how an increase in basic pay might affect shift allowances that were calculated with reference to the rate of basic pay.
The offer was accepted by the members in December 2012. This meant that both the bonus and productivity payments became part of the basic pay.
Rather than paying shift allowances with reference to basic pay however Nexus realised they had made an error and instead split the member’s wage slips into something called “Basic 1” and Basic 2”. This was not something that had been discussed with the union.
Nexus consolidated basic pay and the Red Book bonus and called this “Basic Annual 1”. Nexus consolidated basic pay, the Red Book bonus and the Productivity Allowance and called this “Basic Annual 2”.

When it came to calculating any allowances which were determined in accordance with the rate of basic pay, Nexus calculated these based on “Basic Annual 1” which was the lower amount. The Red Book bonus and the Productivity Allowance had become basic pay when the pay deal was accepted. The Conditions of Service provided for allowances to be based upon basic pay, which was in fact, “Basic Annual 2”.

The union brought a claim for unlawful deductions from wages.

The Respondent argued at the tribunal that the agreement was that the payment had to be cost neutral and the agreement as interpreted by the union did not make commercial common sense. The Employment Tribunal found that the Respondent’s offer was not made on that basis of it being cost neutral but that it had to “appear” cost neutral. The Employment Tribunal found that the members had been underpaid and that the allowances had to be paid based upon Basic 2.

Nexus appealed and the union defended the appeal.

On Appeal nexus sought to raise a new point that the tribunal had no jurisdiction to hear the claim at all following the case of Agarwal v Cardiff University and Another UKEAT/0210/16/RN. Nexus said that Agarwal said that a tribunal had no jurisdiction to construe contractual provisions and that this was a case about what the contractual terms were.
The Agarwal decision was not followed by the EAT in a later case called Weatherilt v Cathay Pacific Airways Ltd UKEAT/ 0333/16/RN and so the EAT had to decide whether Agarwal or Weatherilt was right. The EAT agreed with the decision in Weatherilt and confirmed that the tribunal did have jurisdiction to construe contractual provisions and so that ground of appeal failed.

Their second ground of appeal was that the judge went wrong in his construction of the agreement / contract. The EAT decided that whilst he approached the question in the wrong way, he came to the right answer and that ground of appeal also failed.

Nexus have 21 days to appeal. If they do not then this will be remitted to the Employment Tribunal for a remedy hearing.

3. Chief Constable of Norfolk v Coffey UKEAT/0260/16/BA
The Employment Appeal Tribunal (“EAT”) upheld the decision of an employment tribunal that a police officer suffered direct discrimination because of a perceived disability.
In 2011 the Claimant applied to become a police constable with the Wiltshire Constabulary. She attended a medical, at which it was discovered that she suffers from mild hearing loss with tinnitus. Although the Claimant’s hearing loss was outside the range set down by the Home Office for police recruitment, the Wiltshire Constabulary arranged a practical functionality test which the Claimant passed. In 2013 the Claimant applied to transfer to the Norfolk Constabulary. She attended a pre-employment health assessment, where the medical adviser noted that her hearing was ‘just outside the standards for recruitment strictly speaking’ but that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems. He recommended that the Claimant undergo an ‘at work’ test.
This recommendation was not carried out by the Assistant Chief Inspector (“ACI”). The ACI declined the transfer request and did so on the basis that the Claimant’s hearing was below the recognised standard, and that the transfer would risk increasing the pool of officers on restricted duties.
The Claimant brought an employment tribunal claim for direct discrimination. It was not alleged that she had a disability. Instead, it was argued that she had been treated less favorably because she was perceived to have a disability, in the form of a progressive condition. The tribunal considered that the only way to interpret the ACI’s comments about the risk of the Claimant ending up on restricted duties was that she perceived that the Claimant had a potential or actual disability which could lead to the Constabulary having to make adjustments to her role.
Since this perception was the reason for refusing the Claimant’s transfer request, the tribunal upheld the claim.
The Respondent appealed arguing that the tribunal had erred both in respect of its finding that the ACI perceived the Claimant to be disabled and its finding that the Claimant had been treated less favorably because of that perception.
The EAT stressed that the question of whether A perceives B to be disabled depends on whether A perceives B to have an impairment with the features which are set out in the legislation. The Equality Act 2010 makes special provision in respect of progressive conditions. Where a person has a progressive condition that results in an impairment having an effect on his or her ability to carry out day-to-day activities, but the effect is not a substantial adverse effect, it will still be treated as such if it is likely that the condition will result in a substantial adverse effect in future.
The EAT found that the tribunal had been entitled to find that the ACI perceived the Claimant to be disabled on the basis that the reference to the risk of the Claimant being on restricted duties could only be read as the ACI perceiving that she had a progressive condition which could worsen.
The EAT also found that the tribunal was entitled to conclude that a person with the same abilities as the Claimant, whose condition the employer did not perceive to be likely to deteriorate so that he or she would require restricted duties, would not have been treated as the Claimant was.
The tribunal did not therefore err in law in concluding that she had been subjected to direct discrimination.
Could you please draw this to the attention of our activists and members.
Yours sincerely

Mick Cash
General Secretary