TUBE strikes loom as RMT member wins his claims for unfair dismissal and trade union victimisation

10 May 2011

There have been a series of headlines relating to the dismissals of tube drivers Eamonn Lynch and Arwyn Thomas in the last couple of weeks.

Last week, the largest transport union, RMT demanded an urgent meeting with London Underground following the judgement of the tribunal on 4 May 2011. The Tribunal concluded that Mr Lynch was unfairly dismissed and that his dismissal was unfair for reasons relating to his activities as a health and safety representative and trade union representative.

The case has now been listed for a ‘remedies hearing’ at the tribunal on 3 June 2011.

Jahad Rahman, Senior Associate of niche employment law firm Kervin & Barnes, who previously advised trade unions said: “At the remedies hearing, the tribunal will deal with the issue of whether Mr Lynch should be reinstated to his old job as a train operator and compensation. Whilst the Tribunal has the power to order London Underground to reinstate Mr Lynch, such orders are very rare. In practice, few reinstatement orders are made”. Jahad said: “Those orders, which are made, are often where the employer is a large organisation such that it is practical to order the employee to return”. Although London Underground Ltd is a large organisation, Jahad’s view is that the company is likely to argue that reinstatement is not practical because the employment relationship is permanently damaged or alternatively, that it would not be just to make the order because Mr Lynch contributed to his dismissal.

Mr Thomas’ claim for unfair dismissal and trade union victimisation is due to take place at the tribunal over four days from 23 to 26 May 2011. The issues in dispute are very similar to the issues in Mr Lynch’s case.

RMT General Secretary Bob Crow said: “With the clear parallel with Arywn Thomas’s case there is now an urgent need for London Underground to meet with the RMT to set out a plan for a return to work that can avoid plunging London in to two blocks of strike action that everyone knows will lead to massive disruption”.

If no deal is reached by the end of today, then the tube strike will probably go ahead as announced from 16 May to 20 May. A further wave of action is due to start on 13 June and continue until 17 June.

The strikes are likely to cause disruption to the general public and businesses. There are also fears that the strikes will cost the capital hundreds of millions of pounds.

Recently, Conservative MP Dominic Raab argued for a change in legislation relating to industrial action. He proposed to bring in legislation that would require more than 50 per cent of trade union members to vote for industrial action to make it lawful. The London Mayor, Boris Johnson also called for legislative change after the RMT announced a series of tube strikes.

With industrial action very much in the headlines, Jahad Rahman, Senior Associate of niche employment law firm Kervin & Barnes provides a whistle-stop summary of the law on industrial action.

He says “the starting point is the Trade Union and Labour Relations (Consolidations) Act 1992 (TULRCA), which sets out the requirements for industrial action. Where there is a ‘trade dispute’ and unions consider taking strike action, they are required to follow a complex process.  All members affected by the dispute must be given an opportunity to vote separately on strike action and action short of strike (eg, ban on overtime) and the union must give the employer written notice of its intention to ballot at least 7 days before the first day ballot papers are sent out.  Jahad says: currently, if the majority of those responding to a ballot vote in favour of industrial action, then this is sufficient to call a strike.

The RMT’s ballot which followed the dismissal of tube driver, Eamonn Lynch had a 46% turn out, with members voting 2-1 in favour of industrial action. Under Mr Raab’s proposal, which was rejected by MPs, the RMT would not have been able to proceed with threat of industrial action because the union would not have had the support of half the members balloted.

In view of the cuts in the public sector, it seems likely that there will be a rise in industrial action in the very near future. “The Courts also seem to have relaxed their approach to the interpretation of the strict notification requirements imposed by the TULRCA” said Jahad. In the cases of ASLEF v London Midland and RMT v Serco Docklands 2011, the Court of Appeal overturned injunctions against strikes in both cases. Amongst other matters, the Court held that the ‘accidental failures’ defence in the legislation should apply where the union accidently balloted two members who were not entitled to vote. In addition, the Court confirmed that a minimal breach of the duty to provide accurate figures during a ballot can be disregarded.

Jahad said: the decision is worrying news for employers as it is likely to make it more difficult for them to obtain injunctions against unions based on errors in the balloting process”.