DWP horror in urging chronically ill man to work

 

Stephen Smith had his employment support allowance stopped despite weighing only six stone and being in constant pain. 

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 STEPHEN Smith, 64, from Liverpool, has chronic obstructive pulmonary disease, osteoarthritis, an enlarged prostate and uses a colostomy bag to go to the toilet.

Yet, he failed a Department for Work and Pensions (DWP) work capability assessment (WCA) in 2017, meaning that his employment support allowance (ESA) payments were stopped.  So he was told to sign on to get a £67 a week jobseeker’s allowance, visit the jobcentre once a week and prove he was looking for work.

Smith, who was living alone, told the Liverpool Echo:  'I could only make it to the kitchen to make food once a day. I had no muscles in the back of my leg, which meant I couldn’t stand up at all and had to lean or sit down all the time, but they were telling me I was fit for work.'

Nowhere else to turn, he contacted the Casa community centre and his case was taken up by Terry Craven, a benefit claims adviser. Opinions were sought from two doctors, who confirmed that Smith experienced significant difficulty and pain when completing simple movements and daily activities.

A note written by one of them stated:  'It is my opinion that Mr Smith could not walk 20 metres without pain or exhaustion.'

Opinions were submitted as evidence to bolster Smith’s case but in January last year his appeal was rejected by the DWP. It informed him that he had not scored the requisite number of points for him to be deemed as having limited capability for work.

With Craven’s assistance, he continued to fight his case and won the chance to challenge it at a tribunal just over 12 months after his appeal was rejected.

In the interim, Smith’s health deteriorated further. He contracted pneumonia and was taken to hospital. Photographs of him during his stay in hospital, obtained by the Echo, showed him looking emaciated.

Craven said:  'Around December time me and my wife went to check in on him and my wife said "if we don’t do something now, he’s not long for this world".'

Despite his poor health, Smith was forced to get a pass to allow him to leave hospital and go to the tribunal to fight his case.  Fortunately, having seen Smith’s condition for himself, the judge stated that his mobility and health problems meant that he satisfied the requirement for ESA.

Smith said that without the help of Craven and others at Casa, he 'probably wouldn’t be here today.  I had nowhere to turn. They have saved my life.'

The WCA has long been blighted by controversy. It has been widely criticised as error-prone and mechanistic, often causing harm to the sick and disabled claimants who are obliged to undergo it. Statistics published in 2015 showed that almost 90 people a month were dying after being declared fit for work.

After the Echo published Smith’s story, the DWP apologised and said he would receive ESA backpay.

A spokesperson said: “We are sorry for the experience Mr Smith has had and we are committed to ensuring that people with health conditions get the support they’re entitled to.

'Following the independent tribunal’s ruling, he is now receiving full ESA support. While Mr Smith continued to receive benefits and support during his appeal, we can confirm he will shortly receive all back payments for ESA due.'

(sent to NV by Joe Bailey)

     

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Tameside, the costs add up as receivers take-over

A source close to the levers of power at Tameside Council has told Northern Voices that 'it's a right mess'  in Tameside, since Carillion, a partner to Tameside MBC, suffered the indignity of falling into the hands of the receivers.

This contrasts with the official line put out by the Labour council that it's 'Business as usual' and the crazy claim that Carillion are 'carrying on as normal' after the company imploded.

'Normal business' at Carillion with the company in receivership?  This takes some believing in the present climate.

Up to last week there were 16 sub-contractors working on 'Vision Tameside' services employed by Carillion.  

Northern Voices has had its spies watching the Carillion site in Ashton-under-Lyne town centre, and there's very little movement to be seen.  When NV tried to talk to a security guard he turned tail and ran.

If Tameside council or any of its 'servants' have occasion to want some advice from the receivers, Price Waterhouse Cooper, or make contact in any way, the council must pay a considerable fee for this privilege..

Last week, when the Tory Councillor John Bell asked 'Did Carillion give value for money?', he answered his own question by saying:  'Well we'll never know, because there has been no oversight or proper scrutiny'.

Yet in September 2011, Councillor David Sweeton, executive member for business and community, said: If we transfer workers and services to Carillion,'  this will " protect  jobs, services, and cut costs' ..

Tameside MBC has made similar promises before.  In  the 1990s Tameside Council outsourced all their old peoples' homes to Tameside Enterprises Ltd (TEL) originally formed in 1985 to provide local housing.  In 1993 the company running the homes (TEL) went bust due to financial mismanagement owing £2.2m in debts. TMBC renegued  on its promises to the care workers that they would be redeployed by TMBC if TEL went bust.

Tameside Council's Mantra is 'Vision Tameside', but if this is 'vision' then perhaps, we should humbly suggest, they should go to 'Spec Savers'.

In all this mess the one thing is clear,  Councillor Kieran Quinn's sense of timing in popping his cloggs last Christmas, was perfect.

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European Court: Defeat for Worker's Rights

FOLLOWING a decision in the European Court of Human Rights in Strasbourg released this week, campaigners are challenging politicians to provide legal protection to agency workers. The ruling in the case of Smith v. the United Kingdom (Application Number 54357/15) was handed down by ECHR President, Kristina Pardalos, relates to Dave Smith, an engineer from Maldon in Essex, who was one of thousands of construction workers who appeared on the notorious Consulting Association blacklist operated on behalf of the UK's major building contractors.  Smith was blacklisted after he being elected as a safety representative for the construction UCATT (now part of UNITE).

His Employment Tribunal against various companies in the Carillon Group became a test-case for blacklisted workers but the Strasbourg decision has implications far beyond just the construction industry.  At the original Employment Tribunal, the company admitted that their senior managers had provided information to the blacklist because Smith was a union member who had raised concerns about safety issues on their projects.  But the ET found against Smith because as an agency worker he was not covered by UK employment law.  Millions of agency workers are currently excluded from basic employment rights such as unfair dismissal, redundancy and protection from victimization for raising safety issues.    

Smith's legal team appealed the case all the way to the Court of Appeal before it was finally rejected at the Supreme Court.  A submission was made to the European Court of Human Rights arguing that the Consulting Association blacklist conspiracy was a violation of Article 8 of the European Convention on Human Rights, which are supposed to apply to everyone not just direct employees.  

Paragraph 36 of the ECHR judgement reads: 

"At the outset, the Court considers that in light of the criminal proceedings pursued against the Chief Officer of the Consulting Association by the Information Commissioner for failing to register as a data controller under the Data Protection Act and the admissions made by the defendant companies in the High Court proceedings, it is clear that the retention of personal data by the CA interfered with the applicant’s Article 8 rights". 

However, because of the campaign led by the Blacklist Support Group alongside the UNITE and GMB trade unions, which resulted in a Select Committee investigation and a multi-million pound settlement in High Court litigation, the ECHR ruled that Smith's case had been 'duly considered' by the British legal system and was therefore declared 'inadmissible'. 

While Smith was paid compensation during the High Court settlement, the ECHR ruling leaves the issue of the second class treatment of agency workers by UK employment law completely unresolved.  If even a blacklisted worker whose human rights have been infringed cannot win legal redress in either the UK Employment Tribunal system or the highest court in Europe, what chance do care workers, teachers or nurses engaged via employment agencies stand?  The current differential treatment of agency workers amounts to a EU sized loophole by which unscrupulous bosses can exploit agency workers with absolute impunity.  

John Hendy QC represented Smith in his test-case and commented on the ECHR decision:

"The use of agency workers and false self employment now deprive several million workers from full employment rights. The use of employment tribunal fees defeats the rights of those workers who do have them. As Dave Smith's case shows these problems cannot be left to the courts: they require urgent and fundamental legislation. The election provides the opportunity to vote on this issue".

After receiving the decision, Dave Smith commented:

"This ECHR decision is a green light to bad employers.  If UK and EU judges either can't or won't protect agency workers. I challenge all political parties in the General Election to commit themselves to extending full employment rights to the millions of workers engaged via employment agencies. In an era of zero hours contracts and casualisation, this is a defining issue for any politician claiming to stand up for workers rights". 

Gail Cartmail, UNITE Assistant General Secretary stated: 

“As this disappointing decision is being digested we know the paucity of legal protection from blacklisting means that third parties are instructing “do not engage” or if an activist slips through the net, dismiss.  Tomorrow is International Worker’s Memorial Day when we will mark 43 construction workers death from April 2015 to April 2016. In the past and today major players in construction have singled out trade union activists for raising legitimate safety concerns.  We need a full Public Inquiry and it is good to know this is a Labour pledge.  Remember the dead and fight for the living.”

UNITE member, Terry Brough, was the only other blacklisted worker to have a case submitted to the ECHR.  His case was ruled 'inadmissible' in September 2016. Brough commented:

"I extend my solidarity, respect and best wishes to Dave and his team in this, his latest involvement in the fight for justice. Blacklisted workers have not achieved justice through the courts: Corbyn should pledge a full public inquiry on the blacklisting scandal".  

Blacklist Support Group

Test Case on Trade Union Activities

A key test case on the scope of statutory protection for trade union representatives against dismissal for their union activities, is to be heard in the Employment Appeal Tribunal (EAT) in London, on Thursday 19 March 2015.

Sofia Azam, from Birmingham, was sacked for gross misconduct in November 2013 by the examinations and qualifications regulator, Ofqual, in retaliation for an action which she had carried out in her role as Chair of the Public and Commercial Services (PCS) union branch at Ofqual’s Coventry HQ.

Section 152 of the Trade Union & Labour Relations (Consolidation) Act 1992 lays down that a dismissal shall be regarded as automatically unfair if the reason, or principal reason, for it was that the dismissed employee had carried out a trade union activity at an appropriate time.
Sofia had sent to union members a spreadsheet containing details of the salary gradings that Ofqual proposed to assign to posts within a restructured staffing organisation, following a job evaluation exercise. The employer had insisted that the information was confidential and that Sofia was in fundamental breach of contract in that she breached that confidentiality.

Sofia’s claim of unfair dismissal was unsuccessful at the Birmingham Employment Tribunal. The basis of her appeal is that the Tribunal Judge misapplied case precedents and failed to apply the important precedent of Mihaj v Sodhexo (2014). The judgment of the EAT in the latter case, was that a union activity should only be deemed as falling outside of the scope of statutory protection if the union representative had acted dishonestly, or in bad faith, or in pursuit of some external cause.
Sofia asserts that her case has important implications for all workplace union representatives. 'My employer tried to block a legitimate union action. It improperly and unilaterally attached a "confidential" stamp to industrial relations data which concerned the interests of my union members and which they had a right to have shared with them by their elected union representatives. The union duty which I was dismissed for performing, is a commonplace one for union reps throughout the Civil Service. It is the job of elected union reps to fully inform their members of proposals by the employer that affect those members’ interests. This is fundamental to a union’s being a democratic organisation, run by the members for the members. There is statute law that protects union reps in their carrying out of such duties. Ofqual flouted the law when it dismissed me.'

Sofia is however fighting the appeal without the support of the PCS union. On 23 February 2015 she received a letter from the union’s General Secretary, Mark Serwotka stating:
'We have decided not to support your case as an adverse judgement may narrow the protection provided for Trade Union representatives, by providing a further concrete example to employers as to why dismissal of Trade Union Representatives in specific circumstances will be lawful. That would potentially further the narrow the scope for Trade Unions which the current law gives to us. The funding of the case is not the issue.'

Sofia said that the argument that the union’s supporting her appeal may jeopardise future cases is morally repugnant. 'It is true that whenever an appeal is brought on a point of interpretation of statute law, the Court or Tribunal will be setting a precedent binding on lower courts and tribunals. That precedent could be beneficial or harmful, depending on which way it goes. However, it is surely unconscionable to deny a union member the funding to pursue her right to justice because the end result might possibly be undesirable for others.'

She added, 'This is even more so the case when we consider that I was an elected branch officer of the union who was dismissed for carrying out my duties towards the union’s members”.
Sofia concluded, “The pessimistic view of the union’s senior officials is strange, when the optimistic view would be that a victory for me at the EAT will enormously strengthen the statutory protection for trade union activities by establishing as precedent that an employer cannot place a union activity outside the scope of protection by unilaterally placing a ‘confidential’ tag on industrial relations information that concerns the rights of the union members and which they have the right to see and to be consulted about.' 

PCS MEMBERS CALL ON THEIR UNION TO SUPPORT UNFAIRLY DISMISSED PCS REP!

Rank and file union reps and members of the Public and Commercial Services Union have sent an open letter to General Secretary Mark Serwotka demanding greater support for reps and members in employment tribunals.

The letter, published online here, was initially motivated by the case of John Pearson. John was a PCS rep at Hewlett-Packard, who was sacked as a result of his trade union activities during a dispute over job cuts.
John was forced to pay the Employment Tribunal fees and engage a private solicitor to fight his automatically unfair dismissal claim, after union officials refused to support him, asserting that his claim had ‘no reasonable prospect of success’. The tribunal vindicated John and his supporters by finding that he had been unfairly dismissed and that the principal reason was his activities as part of an independent trade union.


Following on from the verdict, the open letter to Mark Serwotka demands: “Full support for John from PCS as he pursues reinstatement following his ET verdict, and full recompense for the legal costs he has paid at his own expense” as well as “A written guarantee that reps and activists victimised by their employer will receive full and unwavering support when fighting that victimisation, by all available means including ET, as a point of principle.”