The Employment Tribunals have ruled that union representatives at Picturehouseâs Ritzy cinema were unfairly dismissed in June 2017.
The unanimous finding of unfair dismissal, which applies to two of the three applicants, vindicates the decision to bring the complaints which are set within the context of the long-running industrial dispute over Picturehouseâs failure to pay the Living Wage.
The cases were heard at the Employment Tribunals in Croydon, South London, in March this year.
Two of the applicants had sufficient length of service to bring a claim of unfair dismissal; the third representative was employed for less than two years and was therefore unable to bring this claim.
Â Victimisation for trade union activities
On a majority decision, the tribunal ruled against the three representativesâ claim that their dismissals were automatically unfair due to the employerâs victimisation of them for their trade union activities. One member of the tribunal panel disagreed with that finding.
A third complaint of detriment due to suspension was unanimously dismissed by the tribunal panel.
Commenting on the rulings, which were released to the parties in June, Gerry Morrissey, head of BECTU, said:
âWeâre obviously satisfied that the tribunals have found that our members were right to bring the complaint of unfair dismissal. The judgment is clear that Picturehouse management showed a lack of neutrality and assumed the guilt of our representatives.
âWe are very disappointed, however, by the tribunals finding that our representativesâ trade union activity was not central to Picturehouseâs decision to dismiss. We find this hard to accept given the leading role which Ritzy representatives have played in our long-running dispute with the company. We believe that the company took advantage of the circumstances to dismiss BECTU activists.â
The issues which gave rise to the dismissals last year concern an email sent in April 2017 to all BECTU members at the Ritzy summing up discussions at an earlier union meeting; the email included the statement âwe are also going to start pushing cyber-picketsâ.
Cyber-picketing is potentially unlawful activity and when union officials became aware of the email, all members were officially advised of the serious nature of such activity should it be undertaken.
The charge pursued by the employer through the disciplinary procedure was that representatives had failed to alert management to the contents of the email and to take any steps to prevent such activity and that in addition they had not been open or transparent up to the point of dishonesty during the investigation. Six Ritzy representatives were investigated in a process which led to three dismissals in June 2017. A fourth representative was dismissed later and a further tribunal hearing is pending.
Â ‘Lack of neutrality’
Explaining the unanimous decision to find for two claimants in respect of unfair dismissal, the tribunalâs judgment reads:
âIn substance, however, the notes of the meetings show a lack of neutrality at the investigation and disciplinary stages. There was an assumption of guilt on the part of the claimants and, expressly during the disciplinary meeting, Mr OâConnor [Picturehouse Regional Manager] stated that the onus was on them to prove in effect their innocence.â
Â ‘Failure at all stages of the process .. to properly engage with the claimants defence’
Further on the judgement reads: â There was a failure, however, at all stages of the process for the respondent to properly engage with the nature of the claimants defence.â
âFurther, we conclude that the penalties applied to both claimants were outside the band of reasonable responsesâ.
The tribunal panel concludes âAccordingly, in a number of respects the dismissals were unfair.â
Â ‘All members of the tribunal agree that the background union activities of the claimants played a part in the decision-making of the respondent.’
In a key part of the judgment referring to the complaint of victimisation for trade union activity the tribunal members write:
âAll members of the tribunal agree that the background union activities of the claimants played a part in the decision-making of the respondent. The majority accepts however on the balance of probabilities that the principal reason the claimants were dismissed was what Mr OâConnor and Mr Jones [Vice-President of Operations, UK & Ireland, Cineworld Cinemas Ltd] regarded as their misconduct rather than their union activities, the reason advanced by the respondent.â
Commenting on the decision, Vicky Phillips, head of employment rights at Thompsonsâ Solicitors, said: âWe are delighted to have assisted BECTU to secure victory for two of their members dismissed by Picturehouse. The case stands as a warning for employers who close their minds to what employees say in their own defence. We are pleased that a minority of the panel thought that trade union reasons were the reason for dismissal. This case once again shows how difficult it is for such claims to succeed.â
A leading representative from the Picturehouse workers said: âIf anyone should be fired for dishonesty it is Picturehouse and Cineworld bosses. Itâs now proven by the tribunal that they were biased from the beginning. Also since the sackings last year many striking sites have been chronically understaffed which puts huge strain on remaining staff members.â
A date for a further hearing to determine the compensation due to the two BECTU representatives has yet to be agreed.
The dispute with Picturehouse, which runs 23 venues across the UK and is owned by cinema giant Cineworld, continues. Support for workers at the Ritzy and at Picturehouses in Crouch End, Central London, East Dulwich and Hackney continues to grow.