The TUC has demanded that ministers bring forward an employment bill to prevent workers from ‘being treated like disposable labour’.
The call comes after 800 P&O crew were sacked without notice on Thursday and threatened with handcuffs if they refused to leave their ships.
It emerged this afternoon that, contrary to initial reports, officials at the Department of Transport had been informed of the impending redundancies on Wednesday but had kept the information to a small group of people because of fears over “commercial concerns.”
The TUC and the Labour Party said UK employment law urgently needed strengthening to penalise bad employers with an end to fire and rehire practices.
Employment lawyers, meanwhile, have suggested that the ferry operator’s action may prove to be legal because of a loophole created by maritime labour regulations although details of the contracts of the 800 crewmen are not as yet known.
TUC research published during the pandemic revealed that 1 in 11 (9%) of workers had been forced to re-apply for their jobs on inferior terms and conditions. The law, said the body, should state that no notices of dismissal can be given until consultation has been completed. It went on to call for far stronger penalties for companies that failed to consult staff on their redundancies.
Stating that all sacked staff at P&O Ferries should be reinstated immediately, TUC general secretary Frances O’Grady said: “What happened at P&O is a national scandal – it can’t ever be allowed to happen again. Enough is enough.
“This must be turning point for workers’ rights in the UK. The government must urgently bring forward an employment bill that strengthens workplace protections and that imposes strong penalties on employers who break the law.”
She added that as far as P&O Ferries was concerned, “A slap on the wrist is not going to cut it. If the company refuses to reinstate all of its sacked staff it should face serious consequences.”
Although the RMT and Nautilus International unions among others have branded P&O Ferries’ move as illegal, some employment lawyers have raised doubts over the nature of the employment contracts the 800 crew members worked under.
Barry Ross, partner and director at Crossland Employment, told Personnel Today that P&O Ferries may have used a loophole to avoid having to comply with its normal obligations. He suggested that if the dismissed employees were considered seafarers under the Maritime Labour Convention, then the usual laws did not apply in respect of the protections for collective consultation. He said: “The primary issue is how the dismissed P&O Ferries’ employees were employed. If they fall under the definition of seafarers, and are therefore governed by the Maritime Labour Convention, then they may fall outside of the scope of normal UK employment law and P&O Ferries has used a loophole to avoid having to comply with their normal obligations.
“Whether the dismissed staff will be defined as seafarers and therefore fall under the scope of the Maritime Labour Convention depends on a number of factors that will come into play including their contracts, where the vessels are ‘flagged’, what the connectivity between the worker and the UK. It needs significant analysis and access to contracts and facts that haven’t been made publicly available yet.”
They may fall outside of the scope of normal UK employment law and P&O Ferries has used a loophole” – Barry Ross, Crossland Employment
“If the normal UK employment law regime covers the staff of P&O Ferries, then there are significant ramifications for the actions taken in firing 800 staff with immediate effect over a video call.”
If the normal employment rules applied, he said, P&O Ferries should have consulted the unions for at least 45 days; filed an HR1 (criminal offence not to and individual directors can be criminally liable); and consulted at a formative stage.
A failure to follow this process would mean up to 90 days at full pay for each employee and unfair dismissal capped at a year’s salary but subject to the employees being under an obligation to mitigate their loss.
Ross added that if the company had consulted and then they faced strikes, and it would be against the law to employ agency workers to cover for striking employees so it was clearly a balanced decision.
He said: “P&O Ferries appear to have forgotten that tribunals can order reinstatement – but probably not for 18 months when most of these people would have moved on. It’s likely that the company will be offering enhanced terms which most staff will take. If the tribunal considers there are aggravated breaches of process they can levy a fine of £20k per employee.
“Irrespective of whether the actions of P&O Ferries were legal or not, they certainly fall under the category of ‘just because you can, does not mean you should’.”
Stephen Moore, partner at Ashfords, raised the subject of TUPE arrangements: “Whether or not the company should have transferred the employees under TUPE to the incoming agency is a consideration.” As it was, “the employees are likely to have claims for compensation for unfair dismissal and something known as a protective award (13 weeks gross pay for each employee). We note P&O Ferries has suggested it has made generous settlement terms.”
CIPD employment adviser Rachel Suff said that employers should always act with integrity and respect the dignity of their staff.
Business leaders must recognise that sacking staff on the spot via video, and with no notice, is inhumane. Our full statement is here and we’ll be following the situation closely. #PandO #PandOferries pic.twitter.com/vPHJymt1F4
— CIPD (@CIPD) March 18, 2022
On the question of why P&O Ferries workers in the UK were singled out for redundancy and not those in Ireland, France or the Netherlands, Christian Grierson, employment solicitor at Sharpe Pritchard, told Personnel Today: “Arguably the statutory procedures are more stringent and the redundancy payments are more generous in the EU countries. We don’t know why P&O has only focused on UK staff but they may have taken the decision to make only UK staff redundant on a cost benefit basis. Potentially, the legal costs or requirements for other countries may have presented a greater risk to P&O.”
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The Labour party and the TUC have called for DP World, the Dubai-based owner of P&O Ferries, to be removed from the UK government’s Transport Advisory Group.
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