Two unfairly dismissed TUC workers have been awarded more than £100,000 following a flawed investigation in which Paul Nowak, now general secretary, was involved with both the dismissal and appeal process.
A remedy judgment has now been published in the case, which upheld departmental secretary Darren Lewis and conference assistant Greg Lepiarz’s unfair dismissal claims in May 2024.
Unfair dismissal
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Lewis receives £57,460, while Lepiarz is awarded £43,280. Both remedies included a basic award, loss of earnings, future loss of earnings, and uplifts for the TUC’s failure to follow the Acas code of practice on discipline and grievance.
Counsel for the TUC submitted to the employment tribunal that a 25% Acas uplift was only suitable where there was a total failure to follow the Acas code, which was not the case, and suggested the uplift should be 10%.
However, employment judge Joffe said: “We conclude that, given the seriousness and deliberateness of the breaches we found and the lack of mitigation, a 20% uplift was appropriate. There was not a total failure to follow the code but the effect of the breaches was, as we found, very significant.”
Liability judgment
The pair were dismissed from the trade union body in 2022 after providing a website to Newham Trades Council (NTC), an organisation that supports trade unionists working or living in the London Borough of Newham.
IT services are not provided by the TUC to stakeholders such as the NTC. The arrangements for the website were agreed between Ms Dye, NTC general secretary, and the claimants, who had formed a friendly relationship.
Lepiarz completed the work in his own time, away from his TUC duties, and a payment of £320 was agreed. However, there was some confusion about whether this had been paid, and Dye raised concerns with the TUC about the website being taken down and the fact that her relationship with the two claimants had soured after money was requested, having initially thought the website would be provided by the TUC.
The TUC deemed emails sent to Dye by Lewis and Lepiarz as a demand for payment, rather than a request for bank details to repay the £320 and draw a line under the matter. It suspended the claimants and launched a disciplinary investigation.
Lepiarz said that he could not recall any conversations with Dye via his work email and that he had used his personal email as he was doing the work on a voluntary basis.
He claimed he had said nothing that would give Dye the impression that the work was being completed by the TUC, and that he had never intended to profit from the work – he only required payments to cover his costs.
Unfair dismissal
The TUC dismissed Lepiarz for providing an IT service to NTC and charging them for this service; giving a false impression that the service was being offered by the TUC to trades councils; and using his TUC email account to provide the service and communicate as a service provider.
Lewis was dismissed for facilitating the IT services that had been provided by Lepiarz. Both dismissal letters were signed by Paul Nowak, the TUC’s then-deputy general secretary.
The claimants appealed against their dismissal. However, the appeal was heard by Nowak, which the employment tribunal found was inappropriate considering he had sanctioned their dismissal. Both appeals were unsuccessful.
The employment tribunal found that the TUC’s investigation had been cursory and unfair. It also found that a reasonable employer would not have concluded that the tone of the emails sent by Lepiarz to Dye could be characterised as bullying, harassment or gross misconduct, and that Nowak was not sufficiently impartial to hear the appeals.
It said in its May 2024 judgment: “We concluded that it was unnecessary and unfair for Mr Nowak to have heard the appeals given the availability of [the then-general secretary] Baroness O’Grady. Mr Nowak played some substantive role in assessing and approving the dismissals. He would not have appeared to be nor could he properly be considered to be impartial. The respondent had other resources available in the form of Baroness O’Grady. We concluded that this aspect of the procedure contributed to the overall unfairness of the dismissals.”
Breaches of the Acas code of practice
It also found the TUC had breached the Acas code, finding “significant failures with significant effects”. The judge said: “They were unreasonable failures on any view but the more so when considering that this was an employer which, because of its nature, should have had a much better grasp of the Acas code.”
Gerard Airey of Kilgannon and Partners, the lawyer who represented the claimants, said in June 2024: “Darren and Greg are staunch trade unionists. They have been put through a dreadful experience, badly let down and unfairly dismissed by the main body that advocates their protection.
“The findings that the TUC failed to investigate matters properly and breached the Acas code are startling as a result. There was a failure to provide evidence, and Mr Nowak should not have been involved in both the dismissal and appeal process. It was alarming that Mr Nowak indicated he reviewed the dismissal letters and allowed the claimants to be dismissed for breach of a policy that didn’t exist. It is also alarming that there have been significant breaches of the Acas code of practice, given that Mr Nowak was appointed as a member of the Acas council in November 2011. I echo the finding that the TUC should have known better.”
A TUC spokesperson said in June 2024 that it takes its responsibilities as an employer seriously and that it would be “reviewing our internal processes and how they are applied.”
Additional reporting by Ashleigh Webber, from her original story in June 2024.
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