Leaked letter Birmingham council could have answered to avert bin strike

The start of Unite’s legal letter to Birmingham City Council

Unite members among Birmingham City Council (BCC) refuse collectors have been involved in industrial action against the council after the revelation that it had made a secret payment to members of another union, GMB, after the successful conclusion of a strike by Unite and Unison workers in 2017. Unite members voted overwhelmingly to take action because of the ‘bad faith’ of the council.

BCC has claimed that the payment was compensation for its failure to consult with GMB members over planned redundancies, but Unite says this does not stand up on legal grounds.

The SKWAWKBOX has obtained a letter sent to the council by Unite’s legal representatives, in which it asked the council to answer a series of questions about the payment – sent to the council on 3 December, well before the start of the strike.

Almost a month later, after Birmingham residents have faced disruption over the holiday period – and in spite of a seven-day deadline – the council has still not responded to these questions.

The letter lays out the council’s admission that it made the payments and the claim it made in a communication to employees, before listing the questions that required an urgent answer:

You have now confirmed publicly that the reason for the payment made to GMB members was an alleged failure to consult. This is something you clearly should have done at the outset in the interests of industrial relations. In addition, notwithstanding the information you have provided, it does not go far enough to explain why a payment was made.

We note that you state as follows in a communication to employees sent out at the end of last week:

Did Birmingham City Council make a payment to the GMB Union?

Yes. Following objections from Unite, GMB were excluded from a series of discussions which led to the MOU in November 2017 regarding the new WCRO role and the 5 day week. The failure to consult the GMB union was wrong. As a result, GMB submitted a “failure to consult” claim at the beginning of the year against the Council which, following legal advice and talks with ACAS, led to a settlement payment to GMB members.

On the basis of the additional information you have provided we would be grateful if you could respond to the following questions:

1. On what basis did the Council determine that there was “a proposal to dismiss employees as redundant” for the purpose of section 188 Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) in the series of discussions which led to the MOU in November 2017? Please give full details of all facts and matters said to give rise to any such ‘proposal’, and provide copies of all documents in which such a proposal was described or explained to trade unions or their members.

2. What was the date of the Council’s “proposal to dismiss employees as redundant” in the series of discussions which led to the MOU in November 2017?

3. Please explain exactly how the claim made by GMB for a protective award on account of a failure to consult was formulated, including full details of the event said to give rise to a ‘proposal to dismiss as redundant 20 or more employees at one establishment” and details of all documents and communications relied on in the claim by GMB or its members.

4. On what date was there a claim for a failure to collectively consult entered into Early Conciliation by the GMB or its members?

5. Was a claim for a failure to collectively consult under the 1992 Act ever issued in the Employment Tribunal by the GMB or its members?

6. On what date were there talks with ACAS and the GMB and who was the ACAS conciliator who conducted those discussions?

7. Who provided legal advice to the Council following those talks that led to a decision to pay compensation to the GMB or its members?

8. Is it accepted that there is no duty on an employer to pay compensation to affected employees with respect to a claim pursued under the 1992 Act if there are no dismissals?

9. If the proposition in question number 8 is not accepted, can you please explain why that is the case?

10. Is it accepted that there was no ‘dismissal as redundant’ or ‘proposal to dismiss as redundant’ for the purpose of section 189(3) of the 1992 Act in the course of the discussions that led to the MOU in November 2017?

11. If the proposition in question number 10 is not accepted, can you please explain giving full particulars on what basis there were ‘dismissals as redundant’ or ‘proposals to dismiss as redundant’?

12. Was the payment by the Council made to GMB or to GMB members?

13. Please describe the category of GMB members to whom (or in respect of whom) payment was made in relation to the claim for a failure to consult, by reference to their grade and the part of the service in which they worked. Please give the total numbers of GMB members to or on account of whom such a payment was made in each grade in each part of the service.

Please would you reply to all of these questions within the next 7 days’. Given the current industrial situation you will appreciate the importance of us obtaining a sufficiently clear understanding of the basis on which the decision to make the payments was made so as to enable proper scrutiny.

Unite’s legal team to BCC

(Emphases added by the SKWAWKBOX)

Solid answers to these questions might have avoided or at least delayed the strike action. Yet the council has failed to respond, leaving Birmingham residents to face the consequences.

Poor answers, of course, might confirm the council’s bad faith in making what Unite insists is a payment to GMB members – who benefited from the results of the 2017 strike – for not striking.

A Unite source told the SKWAWKBOX:

We’ve still had no response, but we’ve found out that the GMB complaint was in October. The court case didn’t conclude until late November so there’s no excuse for no consultation from October to End of November.

They admit no one had any losses to compensate for and incredibly payment was still agreed in May 2018 and made June 2018.

There is no legal reason for this whatsoever, it’s just a total con to try to break Unite’s influence in the city’s waste services.

They haven’t even filed any legal pleadings, just an early conciliation notice. They’ve even hidden documents about the payment from the council’s Cabinet member for waste.

A Unite source

BCC was contacted for comment but did not provide a response.

SKWAWKBOX comment:

If BCC feels it has acted in good faith, why has it failed to respond to a letter sent more than month ago?

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