Mr J MacNaughton v Calmac Ferries Ltd and others: 4113588/2021
| Jurisdiction | England & Wales |
| Judgment Date | 22 May 2023 |
| Date | 22 May 2023 |
| Published date | 05 June 2023 |
| Court | Employment Tribunal |
| Citation | 4113588/2021 |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4113588/2021 5
Held in Glasgow on 6, 7, 8, 9 and 20, 21, 22, 23 and 27 March 2023 Employment Judge L Wiseman Members L Brown and A Grant 10
Mr James MacNaughton
Claimant
Represented by
Mr T Merck Advocate [Instructed by:
Ms S Shiels –
Solicitor
Calmac Ferries Ltd
First Respondent Represented by:
Ms S Mackie Solicitor
Caledonian MacBrayne Crewing (Guernsey) Ltd
Second Respondent Represented by:
Ms S Mackie Solicitor
David MacBrayne Ltd
Third Respondent Represented by:
Ms S Mackie Solicitor
David MacBrayne HR (UK) Ltd
Fourth Respondent Represented by:
Ms S Mackie Solicitor
15
20
25
30
35
JUDGMENT OF THE EMPLOYMENT TRIBUNAL 40
The Tribunal decided to dismiss the claim.
4113588/2021
Page 2
REASONS
1.
The claimant presented a claim to the Employment Tribunal on the 2 December 2021 in which he brought claims under the Employment Relations Act 1999 (Blacklists) Regulations 2010 and section 146 of the Trade Union and Labour Relations Consolidation Act 1992. The claimant successfully
5
applied for employment with the respondent in 2014. This employment was terminated on the day it started because the claimant did not have the correct certification for the vessel. The claimant will say that he was subsequently subjected to a detriment for using the services of a trade union, and blacklisted. The claimant supported his claim by pointing to the fact he had
10
subsequently applied for 60 plus positions with the respondent and had only been successful in one application, which was withdrawn before he started work.
2.
The respondents entered a Response to the claim in which they denied the existence of a blacklist and denied the claimant had been subjected to a
15
detriment for using the services of a trade union. The respondent asserted the claimant’s employment in 2014 had been terminated because he did not have the correct certification for the vessel and the offer of employment in 2017 had been withdrawn because the claimant had failed to demonstrate behaviour consistent with the respondent’s values following a conviction for Assault to
20
Injury.
Introduction
3.
The claimant, in 2014, was a member of the trade union Prospect. The claimant commenced employment with the respondent but this employment
25
was immediately terminated because the claimant did not have the correct certification for the vessel. The claimant made use of the services of his trade union to successfully seek a compensatory payment for the loss of employment. The claimant asserts that because of making use of the services of his trade union he was branded a trouble-maker and blacklisted by the
30
respondents.
4113588/2021
4.
Page 3
The claimant continued to apply for jobs with the respondents (60 applications in total) and has been unsuccessful in all but one of those applications. The claimant was offered employment in 2017 but this was withdrawn following the respondent learning of a conviction for Assault to Injury.
5
5.
The claimant, through a Subject Access Request in early 2021, recovered emails
referring
to
a
document
entitled
“James
MacNaughton
–
BLACKLIST.doc”.
6.
The claimant’s case is that the events of 2014, together with the blacklist document and the internal correspondence and comments surrounding his applications, demonstrate the real reason why he has not been successful in
10
obtaining employment with the respondents.
7.
The case has been subject to case management where it was agreed the list of 60 applications would be focussed on the 20 applications highlighted on pages 197 – 204 (that is, applications 1, 2, 4, 10, 21, 22, 26, 29, 30, 36, 28,
44, 49, 51, 54, 55, 56, 58, 59 and 60). In fact, applications 4, 21, 59 and 60
15
were withdrawn during the course of the hearing.
8.
The claimant’s representative also made clear at the start of the hearing that the blacklisting claim was brought in terms of Regulations 3 and 9. (The claim brought in terms of Regulation 6 had been withdrawn following the claims against two recruitment agencies being withdrawn).
20
9.
The tribunal and parties agreed at the start of the hearing to separate liability and remedy. This hearing, accordingly, is restricted to determining liability for the claims brought by the claimant.
10.
25
The tribunal heard evidence from:
(i)
The claimant;
(ii)
The claimant’s wife, Anne MacNaughton;
(iii)
Kevin Campbell, Technical Manager (Overhauls)
(iv)
Laura Farina, HR Assistant,
4113588/2021
5
10
11.
Page 4
(v)
Leeanne Taylor, HR Business Partner (Employee Relations)
(vi)
Patricia Harwood, HR Business Partner
(vii)
Evan Mackay, Marine Manager
(viii)
Chloe Nelllis, HR Assistant
(ix)
Lee McDowell, Master
(x)
Dario Spadavecchia, Marine Manager
(xi)
Natasha Kerr, HR Business Partner
(xii)
Pauline Tylee, HR Services Superviser
(xiii)
Carol MacFarlane, HR Services Manager.
The tribunal was referred to separate folders of documents prepared by the claimant and the respondents’ representatives. (The letter C or R before a page number denotes whether it is the claimant’s or respondents’ productions).
12.
The tribunal, on the basis of the evidence before it, made the following material findings of fact.
15
Findings of fact 13.
The first and second respondents are wholly owned subsidiaries of the third respondent, David MacBrayne Ltd. The fourth respondent is responsible for all recruitment for the three other respondents, who are involved in the operation of passenger and vehicle ferry services between the mainland of
20
Scotland and its major islands on the West coast. (The different respondents are not differentiated within this Judgment: they are referred to generically as “the respondents”.)
The respondent’s recruitment process 25
14.
The respondents’ recruitment process in the period 2014 – 2019/2020 was that posts would be advertised internally and externally and applications/CVs
4113588/2021
Page 5
sent to an HR Inbox. The HR Assistants would collate the CVs for the various posts, cut and paste them into an email and send all of them to the hiring manager/s. HR did not, at this time, carry out any sifting.
15.
The HR Assistants did, frequently, rename CVs. This was done, for example,
if the CV had been sent in with a covering email but the CV did not contain
5
the name of the person, or if it was not clear or if the person had applied for more than one position.
16.
The hiring manager was responsible for sifting the applications/CVs and deciding who to invite for interview. This would be confirmed to HR who would issue the invite to interview letters. The hiring manager would carry out the
10
interviews and decide who was successful. The hiring manager would notify HR of the decision and an offer of employment would be issued by the second respondent.
17.
The HR Assistants would issue standard template emails to the unsuccessful candidates thanking them for their application and saying they had been
15
unsuccessful on that occasion. Some of the template emails included a paragraph saying “please do not let this deter you from applying for vacancies in the future”.
18.
The respondent did not provide feedback to unsuccessful external candidates regarding the reasons for being unsuccessful. Feedback would only be
20
provided to internal candidates.
19.
Ms Carol MacFarlane commenced employment with the respondent in July 2018 as HR Services Manager. Ms MacFarlane, in response to complaints from hiring managers regarding receiving all CVs, introduced a system (in 2019/2020) whereby HR started to sift CVs for the basic requirements of the
25
job, and to check certification.
20.
The HR team was a small team who sat together in the office. There was chatter about applicants/employees, including the claimant
4113588/2021
Page 6
The respondents’ relationship with trade unions 21.
The respondents recognise four trade unions for the purposes of collective bargaining: RMT, Nautilus, Unite and TSSA. The collective agreement between Calmac Ferries Ltd and TSSA, RMT, Unite and Nautilus,
representing Port Assistants and Senior Post Assistants was produced at
5
R212. The collective agreement between Calmac Ferries Ltd and TSSA representing clerical staff throughout the company was produced at R281.
The collective agreement between Caledonian MacBrayne Crewing (Guernsey) Ltd and Unite and RMT for the crew on all Small Ferries was produced at R224. The collective agreement between Caledonian MacBrayne
10
Crewing (Guernsey) Ltd and RMT representing the ratings of the Clyde Fleet was produced at R246. The collective agreement between Caledonian MacBrayne Crewing (Guernsey) Ltd and the RMT representing ratings within the Western Isles, employed on all vessels operated by Calmac Ferries Ltd on all agreed Western Isles routes was produced at R270. The collective
15
agreement between the second respondent and Nautilus International representing all Masters and Officers employed on vessels operated by Calmac Ferries Ltd on the agreed Hebridean and Clyde routes was produced at R303.
20
22.
The vast majority of the respondents seagoing employees and port assistants/senior port assistants are members of a trade union (although the respondents do not hold information regarding trade union membership).
23.
The respondents have a very healthy, mutually beneficial relationship with the trade unions and it is something both sides have worked hard to develop. Ms
25
Leeanne Taylor, HR Business Partner (Employee Relations) is responsible for dialogue with, negotiations and working with the trade unions. There are regular joint consultative meetings with each of the recognised trade unions,
attended by Ms Taylor, management representatives and representatives of the respective trade union. There are times when the respondents and trade
30
unions do not agree, but every effort will be made to try to resolve matters before they escalate.
4113588/2021
24.
Page 7
The respondents employ a dedicated RMT representative who works out of the RMT office. There are also trade union...
To continue reading
Request your trial