Berkani v NSL Ltd ET/2200596/11
Date added: 16 February 2012
unfair dismissal | misconduct | trade union activities
In this case, the employer plotted to dismiss an employee on “trumped up” charges, but he was vindicated by an employment tribunal that saw through the employer’s sham disciplinary process.
Practical tips
It is unlawful to discipline or dismiss an employee because of his or her participation in trade union activities.
An employee's dismissal because of his or her trade union activities will be automatically unfair, even if he or she has less than one year's (or, where he or she starts employment on or after 6 April 2012, two years') continuous service.
If an employee is underperforming, the employer should deal with that issue properly through support and a performance management process. |
NSL Ltd provides parking enforcement services to local authorities and, in 2007, employed Mr Berkani as a civil enforcement officer (CEO), a role previously referred to as a traffic warden. What follows is the findings of the tribunal, which preferred Mr Berkani’s evidence to that of the company’s witnesses.
From the outset, Mr Berkani and his managers had a different view of how the task of enforcing parking standards should be handled. The managers took the view that a minimum number of parking contravention notices (PCNs) should be issued (10 per working shift was “frequently mentioned” as a minimum), whereas Mr Berkani felt that this was “unethical”, “illegal” and “immoral”, and preferred to issue PCNs only as a last resort.
An email from senior management dated 9 November 2009 said that “there are still significant numbers of people issuing [PCNs] at a rate of below nine per hour”. Managers felt under pressure to ensure that PCN issuing was maximised, and passed this pressure on to the CEOs. They, in turn, adopted a “predatory and, in some cases, dishonest” approach to motorists.
In February 2010, Mr Berkani gave a copy of the email of 9 November 2009 to a member of Westminster Council. The issue was leaked and became the subject of articles in the national and regional press. The company’s managers blamed Mr Berkani for this adverse publicity.
Back in 26 November 2009, Mr Berkani had been involved in an altercation with a motorist, and was charged with common assault. When he arrived at the police station on 1 February 2010, as ordered, he was disappointed to find that the company had not provided him with any free legal assistance, as it should have done. Mr Berkani was acquitted around May 2010. The tribunal concluded that the company’s failure to provide Mr Berkani with any proper support over the issue was because of his actions in seeking to expose and oppose its “clandestine PCN quota system”.
When Mr Berkani returned to work in May 2010, because of the altercation he felt afraid to issue PCNs himself. When he felt a PCN was appropriate, he would ask a colleague to issue it. The company could have treated his failure to issue PCNs as a performance issue, but did not do so. One of his managers, Mr Boxall, later gave evidence that to discipline or sack a CEO for not issuing PCNs would be “politically a hot potato”, and that he “backed off from dealing with [Mr Berkani’s] work as a performance issue”. Nonetheless, the matter made Mr Berkani even less popular with his managers.
Around July 2010, Mr Berkani was appointed as a shop steward for the GMB union, which was not recognised by the company. He had been, and was, active in attempting to recruit new members and raise the union’s profile. Another manager, Mr Dunbar, was “threatened by the growing power of the union”, and tried to suppress and discourage Mr Berkani from carrying out union activities. He was also “openly abusive and contemptuous” of union representatives, and of Mr Berkani in particular.
In June 2010, Mr Dunbar had offered Mr Berkani a “highly sought-after” position in the company’s vehicle pound, but told him that this was conditional on his immediately ceasing his union activities. On another occasion, Mr Berkani found that, during his absence, all of his union application forms had been thrown in the bin. Another time, he found that his locker had been forced and his union diary was missing.
In September 2010, when Mr Berkani complained about the quality of the water supply at the workplace, Mr Dunbar told him that he “had a fucking big mouth and was a troublemaker”. A few days later, Mr Berkani complained about a large live cockroach that he had found in the workplace kitchen. Mr Dunbar said that the cockroach had come from Mr Berkani’s home. Mr Dunbar was also resistant to the company's providing Mr Berkani (who is diabetic, and has a higher risk to the health of his feet) with new shoes, saying that he “did not deserve” them because he was a union representative and a “lazy fuck”.
By October 2010, relations between Mr Berkani and three managers (Mr Rowlands, Mr Dunbar and Mr Davison) had reached a “very low ebb”. The managers saw him as a troublemaker and “schemed” to ensure his dismissal by “trumping up various alleged disciplinary charges against him”. The tribunal found that Mr Boxall was told by at least one of the three managers – and probably all three – that Mr Berkani should be “got rid of”.
Part of this “plot” involved the company asking a fellow CEO to make a complaint against Mr Berkani. When all that the CEO could come up with was a vague complaint about Mr Berkani’s personal conduct, and his failure to issue PCNs, the CEO was placed under pressure by the “conspiring managers” to come up with something more specific. However, she failed to produce a genuine complaint that warranted disciplinary charges.
The tribunal also found that, on 14 October 2010, Mr Dunbar was sent to Mr Berkani’s workplace to try to provoke an incident that could be used in disciplinary action against him. Mr Dunbar singled out Mr Berkani for not leaving for his shift by 9.30am, even though it was customary for CEOs to leave by 9.45am. After Mr Berkani argued about this, Mr Dunbar completed a “record of event form”, in which he “probably dishonestly” alleged that Mr Berkani had raised his voice and sworn at him.
In October 2010, after Mr Berkani had attended a health and safety course, a colleague informed him that he had seen papers “against [Mr Berkani]” on Mr Dunbar’s desk. The papers consisted of a petition against Mr Berkani containing an attack on him, and were drafted by Mr Rowlands, who had caused them to be promulgated around the workplace until Mr Dunbar had asked him to stop. During Mr Berkani’s absence, Mr Rowlands had tried to get CEOs to sign the petition, and Mr Dunbar had canvassed employees about making statements against Mr Berkani.
When confronted by Mr Berkani about the “propaganda” on 23 October 2010, Mr Rowlands denied all knowledge. Mr Berkani waved his pen at him. After the altercation, Mr Rowlands completed a form stating that Mr Berkani had acted in a “loud and intimidating manner”.
The company suspended Mr Berkani on 27 October 2010 on the “trumped up” disciplinary allegations, which included the complaints about him from colleagues who were placed under pressure by the managers, and his reaction to Mr Dunbar on 14 October and to Mr Rowlands on 23 October.
Mr Berkani complained that he was being made the subject of a “propaganda campaign” by Mr Dunbar and Mr Rowlands. However, the disciplinary officer – Mr Boxall – chose to deal with his complaints as a grievance and separately from the disciplinary charges, something that the tribunal found to be “highly artificial”, given that the issues were interlinked.
Mr Berkani lost faith in the disciplinary process and raised further grievances, including a complaint about a lack of impartiality on Mr Boxall’s part. He declined to attend any further disciplinary hearings with Mr Boxall, and was dismissed on 11 February 2011. Mr Berkani appealed and, after the hearing, was given a letter that he had not previously seen. The letter was from Mr Boxall, rejecting his grievance about Mr Rowlands’ “propaganda campaign”.
Mr Berkani claimed unfair dismissal. The tribunal found that the company had not shown that the real reason for dismissal was misconduct or, indeed, any other potentially fair reason. The real reasons were Mr Berkani’s opposition to the company’s clandestine quota system for PCNs and his trade union activities. In any event, the “so-called misconduct” would not have justified dismissal, even if it had been the genuine reason.
The tribunal found that the disciplinary process had been a sham designed to get rid of Mr Berkani while “skating over or ignoring” the genuine, serious counter complaints that he had raised. Mr Berkani’s dismissal was unfair, and the fact that he stopped attending disciplinary hearings with Mr Boxall did not mean that he was guilty of contributory fault.
Additional resources
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