Mr A Marshall and others v The Doctors Laboratory Ltd: 2203491/2020 and others
| Jurisdiction | England & Wales |
| Judgment Date | 16 August 2022 |
| Date | 16 August 2022 |
| Published date | 08 September 2020 |
| Court | Employment Tribunal |
| Citation | 2203491/2020 and others |
| Subject Matter | Public Interest Disclosure |
Case No: 2203491/20 and 7 others
10.2 Judgment - rule 61
EMPLOYMENT TRIBUNALS
Claimants: (1) Mr A. Marshall
(2) Mr B. Gee
(3) Mr A. Alston
(4) Mr J. Ramstein
(5) Mr A. Fernando Macedo
(6) Mr F. Oliveira Silva
(7) Mr J. Bosher
(8) Mr J. Foster
Respondent: The Doctors Laboratory Ltd
London Central remote hearing On: 29, 30 July 2020
Before: Employment Judge Goodman
Representation
Claimant: Lord Hendy Q.C.
Mr C.Milson, counsel
Respondent: Mr J. Laddie Q.C.
Mr T. Kibling, counsel
PRELIMINARY HEARING
JUDGMENT
No order is made on the claimants’ applications for interim relief.
REASONS
1. This was a hearing of applications for interim relief following termination by the
respondent of their employment relationships with the eight claimants on 9 June
2020 by reason of redundancy.
2. All eight have brought claims that they were in fact dismissed by reason of trade
union membership or activities. They seek interim relief pursuant to section 196 of
the Trade Union and Labour Relations (Consolidation) Act 1978 (TULRCA). Two
claimants (Mr Marshall and Mr Gee) also bring claims of dismissal for making public
interest disclosures and seek interim relief under section 128 of the Employment
Rights Act 1996 (ERA).
3. The claims were presented on 15 June 2020. There were two case management
hearings before today, one to list, and one to hear an application by the claimants for
specific disclosure.
Case No: 2203491/20 and 7 others
10.2 Judgment - rule 61
4. Unusually for an interim relief hearing, the respondent had been able to file the ET3
response before today. This meant that the issues for the final hearing were clear.
Factual Background
5. The respondent is one of the largest providers of clinical laboratory diagnostic
services in the UK, supplying both private healthcare providers and the NHS. At the
material time it employed 2,130 people, 1,980 of the London. There are 42
laboratories, 13 in London. To transport samples of blood, urine and other tissue,
from clinics and hospitals to laboratories, they maintained a force of nearly 160
couriers in London. Of these, 108 used motorcycles, 34 drove vans, 6 used bicycles
and 4 delivered on foot. Another 5 delivered by rail.
6. These claims arise from the respondent notifying an intention on 1 May 2020 to
make all the bicycles (“pushbikes”) and pedestrians (“walkers”) redundant, `10
couriers in all. The termination was effective on 9 June 2020. The respondent says
there was a downturn in demand, notably from the private sector, as restrictions on
air travel meant private patients from overseas were not coming to London, but also
in the NHS because of the decision to halt routine NHS work to make space for
Covid-19 patients. The respondent says it focused on the non-motorised group,
limited to an inner London area around Harley Street, in order to maintain flexibility of
the courier group.
7. The claimants were all in the non-motorised group. They maintain that the
respondent chose to be rid of this group because of their history of vociferous trade
union organisation, or because of disclosures made to management and the press
about shortcomings in health protection measures during the pandemic. This history
included (1) notification to the respondent in February 2017 that they were seeking
recognition of their trade union, International Workers of Great Britain (IWGB), (2) a
claim by 5 couriers (including the 1st and 6th claimants) to the employment tribunal
that they were employees or alternatively workers, upon which the respondent
admitted worker status in the proceedings and conceded that all non-employed
couriers were workers, with effect from 1 January 2018, (the employment status
claim was not pursued thereafter),(3) a formal application for union recognition to
CAC in July 2017, which succeeded in February 2018, following which the
respondent negotiated a recognition agreement with the union for the whole courier
group in April 2018, (4) tribunal proceedings for holiday pay for workers backdated to
the start of engagement with the respondent (5) a demonstration about an offer of
employee status, which, if accepted, resulted in a pay cut, if accepted, in October
2018, (6) notice of dispute and a strike ballot, leading to a 2 day strike in May 2019,
(7) 3 claimants bringing a tribunal claim for unlawful deductions from wages in
respect of unpaid breaks in November 2019 (8) from March 2020, complaints about
PPE, pay if self-isolating, and other health concerns of the courier group, some to the
respondent, some in national print and online media.
8. The respondent says it had already decided from January 2017 not to replace any
non-motorised couriers who left, in order to improve flexibility of the area couriers
could cover, and this informed their choice of which couriers to make redundant; the
claimants say this coincided with and was because of the claim for trade union
recognition.
Conduct of the Hearing
9. The start of the hearing was delayed by clerking difficulties. After the start, doubt was
expressed on whether it had been notified to the public, as the hearing was not listed
on Courtserve, and the hearing was adjourned while arrangements were made to
post a notice of public hearing at Victory House. It transpired in the break that
although not published on Courtserve, the case did in fact appear on the press list.
The 10 am start having been put back to 11.30, there was a 30 minute lunchtime
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