Amicus / Unite Refuse Direct Access to Legal Advice
Lisa Ashton was a fully paid up member of the British Union Amicus / Unite. Despite this Lisa was refused direct access to Legal advice by her own Union. Numerous requests to talk to the Union’s legal team were repeatedly refused, as was a request for the contact details of the Union’s legal team. Instead Lisa was told time and again that all correspondence must be sent to the Union representative, and then, on her behalf, the Union representative would contact the Legal section.
On the face of it, this seems a strange decision by a British Union not to support a member in what would appear to be a blatant case of discrimination by the airline BMI. However what has to be considered is that, for whatever reason, Amicus / Unite had already agreed with the airline that they COULD impose these demands on the Union’s members.
The Amicus / Unite full time representative refused Lisa direct access, either to write or to talk, to the Union’s legal representatives. She insisted all communication must go via herself. That communication was then “filtered” by the Union to the Legal team. This resulted in Amicus / Unite refusing to support Lisa when she was dismissed and refused to represent or give her any legal assistance when at tribunal.
The fact that the Union had already agreed with BMI that they could insist on demanding its female crew must walk behind the men and wear the Islamic Abaya while removing a crucifix, would have caused the Union a “conflict of interest” if they then supported a member who refused to accept these demands.
The following is a letter in response to Lisa’s letter demanding to know why the Union Amicus / Unite refused to support her, you will see it is littered with mistakes and inconsistencies.
Letter Sent From Amicus / Unite to Lisa 25th April 2008:
“We refer to your request for advice of 8th April 2008 on the merits of our member’s potential claim for unfair dismissal and discrimination on grounds of religion or belief. Our solicitors have now had the opportunity to consider the information and documents provided and we are writing to set out their advice.”
Our member was employed as a flight attendant by BMI until her dismissal on 2nd April 2008.
The airline introduced flights to Saudi Arabia on 1st September 2005, following an email (it was a memo not an email) sent to all staff on 9th August 2005. It is our solicitors understanding that our member received the relevant email, and no objection was made to flying to Saudi at this time, despite the email stating that anyone who felt unable to fly this route should take it up with their manager.”
The MEMO of 9th Aug 2005 clearly stated it was only LHR crew who would be required to fly to “any destination” required of them. I.e. Saudi. It DID NOT state the same was required for Manchester based crew. Therefore that email did not apply to Lisa at that time as Lisa was Manchester based.
However it did state Manchester crew would be required to “in the fullness of time”, however no time frame was stated. It also stated that all crew required to operate to Saudi “Will be rostered to attend a Cultural Awareness course. In addition, PRIOR TO LAUNCH crew will be issued with a full service brief and information brief”. Lisa never received either the training OR the full service and information brief. This can be proved by looking at Lisa’s roster for that period. Therefore it can be said, at this time, due to the training not being completed and documents not being issued that Lisa could reasonably expect not to be rostered a Saudi flight.
“The memo suggested that staff refusing to fly to Saudi could be reintegrated into flying short haul.”
The Union letter uses the word “suggested”, that’s EXACTLY WHY, Lisa required BMI to make a definitive statement however BMI refused to “clarify” this memo numerous times as you can see from the number of times Lisa asked the question “Are BMI stating that all crew who are not prepared to operate into Saudi will be taken of Long Haul?”
Also Lisa was already “reintegrated” into flying short haul, she was current and in check on BMI’s short haul fleet. Lisa never refused to fly any short haul or long haul route, apart from the Saudi route.
“On 2nd January 2006 our member wrote to the airline expressing safety concerns regarding flying to Saudi.”
TOTALLY FACTUALLY INCORRECT!
As you see, Lisa’s letter of the 2nd Jan makes no mention whatsoever of safety concerns.
“Various exchanges of correspondence took place over the coming months and on 28th March 2006, our member reiterated that safety concerns were the basis for her refusal to fly to Saudi.”
The letter of 28th March 2008, as you see, Lisa made no mention to safety concerns. However…IN BOLD AND UNDERLINED the letter did draw BMI’s attention to the fact that all duties have to be REASONABLE i.e. legal, non-discriminatory and within the Human Rights Act. She had already informed BMI in the letter of 20th Feb 2006 that she would refuse to operate to Saudi because she was, “being asked to remove any outward sign of my faith” whilst being told by BMI that she must don the outward sign of following another faith by wearing the Islamic abaya. Lisa’s employment contract stated that she “Shall perform duties in the air and on the ground as the company may reasonably require”. Being told to remove an outward sign of your own faith and replace it with an outward sign of another faith is not reasonable. Being told to walk behind the men is not reasonable. This was the intention of underlining and putting in bold the word Reasonably.
Lisa wrote to Amicus / Unite expressing her concern at the lack of care and support she had received from the Union. In response to Lisa’s letter the Union wrote:
“Our solicitors do not accept that there has been any lack of interest demonstrated.”
“advice of 25th April (ie this letter) demonstrates the time and effort that has been put into reviewing the case” and finally:
“the various exchanges of correspondence our solicitors have referred to were considered in full”.
We agree with the union regarding “advice of 25th April demonstrates the time and effort that has been put into reviewing the case” As you see, time and effort did not equate to “professional”.
Therefore in light of the Union’s legal departments inability to deduce simple facts from documents provided to them we suggest Amicus / Unite might wish to reconsider the above comments.
“The airline suggesting a meeting with her to discuss her concerns, but she appears to have declined this offer”.
Again, incorrect. BMI actually stated as she had raised a “grievance” they wanted to hold a grievance procedure. As Lisa pointed out, there was no point at this stage in a meeting as Lisa had definitely NOT raised a grievance. It is NOT the remit of BMI to instigate a “grievance procedure”, it is the employee. Lisa had not been rostered the Saudi course or been issued the required manuals, therefore had, at that time, no expectation to be rostered a Saudi flight. Therefore, no need for a grievance at this time.
Lisa had pointed out that all duties regarding section 3.2 of the contract must be reasonable, i.e. non-discriminatory and legal and was still waiting for clarification of her question “If I refuse to operate to Saudi will I be taken off Long Haul?” Lisa was looking for a clear answer, the union Amicus / Unite also refer to the memo sent by BMI as “suggesting” that crew refusing to fly to Saudi would be re-integrated into flying short haul.
Reasons Amicus / Unite Gave For Not Supporting Lisa
“direct discrimination on grounds of religion or belief.”
“Each of these will be discussed in turn.”
“The dismissal itself appears to be on grounds of misconduct, based on our member’s alleged refusal to perform a task which she was contractually obliged to perform.”
“Cabin Crew are required to serve the Company in any part of the world as and when required and shall perform such duties in the air and on the ground as the Company may reasonably require…”
Therefore contractually the duties issued by the company MUST be reasonable, ie non-discriminatory and lawful. Also Lisa was not trained to perform the said duty or had BMI issued Lisa the full service and safety brief as per the BMI memo of Aug 2005 again the duty must be reasonable i.e legal and non-discriminatory and a duty that a crew member could perform safely.
“You will of course be aware that conduct is a potentially fair reason for dismissal. “
“A Tribunal will consider whether the dismissal fell within the band of reasonable responses open to the employer based on the facts and circumstances of the case.”
The facts are Lisa was never rostered the course that BMI stated was required for all crew operating to Saudi. Also the requirements to walk behind the men and for female crew to wear the abaya IS discriminatory. According to the Saudi Embassy, the Saudi embassy website, and the Foreign Office website (Links on the right of the page) there is NO requirement for females to walk behind the men also there is NO requirement for western women to wear the Islamic abaya. It appears that BMI allow its female Chef’s NOT to wear the Islamic abaya. Therefore BMI’s demands are discriminatory.
“They will take into account matters such as previous disciplinary record and length of service. You will no doubt be aware that the employer does not need direct proof of the misconduct; it merely requires a genuine belief on reasonable grounds following a proper investigation. Their response to this finding must then fall within a reasonable band of responses. On the face of it, the employer would appear to have conducted a reasonable and proper investigation and based on that investigation it formed a genuine belief that our member was guilty of the misconduct in question. Likewise, the decision to dismiss would appear reasonable in the circumstances.“
It would appear that 99% of comments throughout the world online and in the media disagree that “the decision to dismiss would appear reasonable in the circumstances.”
The Union therefore states that it was reasonable to dismiss Lisa a Cabin Crew member for refusing a duty that, a) She was not trained for and b) Required her to accept blatant discriminatory demands from BMI outside anything required by the Saudi Authorities.
“Direct Discrimination on grounds of religion or belief”.
However, this is not the end of the matter. If it was proved that the causative reason for the member’s refusal to co-operate with the terms of her contract were on grounds of religion or belief, then she may have a valid discrimination claim. This would, if successful, render her dismissal unfair.”
It states, and Lisa drew BMI’s attention to clause 3.2 that all duties must be reasonable ie, not sexually, racially, religiously discriminatory or unlawful. Despite BMI having no basis for issuing discriminatory demands, Lisa was dismissed. The Saudi Embassy confirm there is no requirement for the BMI demand that females walk behind the men or for women to wear the abaya.
“The legal definition of ‘belief’ in this context is fairly broad, and denotes any philosophical belief which has obtained the required level of cogency, seriousness, cohesion and importance, and which is worthy of respect in a democratic society. It is quite possible that our member’s beliefs regarding Saudi Arabia would fall within this definition”.
“However, our solicitors must suggest that she is likely to experience significant difficulties in asserting that the beliefs that she has asserted about Saudi Arabia (from June 2007 onwards) formed the basis of her decision not to travel there. She is likely to encounter serious problems in relation to the credibility of any such assertion, given that her stated concern was safety for a prolonged period.”
Totally, factually wrong. The FIRST time Lisa raised her concern regarding safety was in the letter dated 20th Feb 2006. In the VERY SAME LETTER Lisa stated, “as a practicing Christian I am being asked to remove any outward sign of my faith”, therefore Lisa DID raise her religious concerns as ONE of the reasons she would refuse the duty. She was being asked to remove any outward sign of her own faith and then being told by BMI she had to adopt the outward sign of another faith by donning the Islamic abaya.
We have already proved that the Union are factually wrong in this matter as Lisa raised the issue that all duties must be reasonable in 2006. She had NO reason to give any other reasons due to the fact that she should not have been issued a Saudi route UNTIL she had completed the Saudi course AND had the service brief. All of which she never received. BMI showed totally no consideration of its “duty of care” to its staff. Why was this not picked up on by the Union. Also, taken from BMI’s own minutes Lisa stated in the meeting of 4th March 2008 “Its discrimination against women having to walk behind the men” and “I feel discriminated against, religious grounds and as a woman.”
“with religion or belief only being brought up some significant time later.”
Factually totally incorrect, AGAIN!!….Lisa stated in a letter of 20th Feb 2006 LINK that “As a practicing Christian I am being asked to remove any outward sign of faith” This was in the very same letter that she firsts mentions her concerns regarding safety. The union, therefore can yet again be seen to be, FACTUALLY INCORRECT in attempting to assert that Lisa did not mention her religious concerns “some significant time later.”
“For clarity, safety concerns are very unlikely to fall within the aforementioned definition of belief. Direct discrimination occurs when a person receives less favourable treatment on account of her religion or (in this case) belief .”
Why have the Union missed out sexual discrimination? Would this be because the Union Amicus / Unite have agreed with BMI that it is acceptable for a British company, outside any restrictions from the host country, to insist that female crew must walk behind the men irrespective of rank and remove any outward sign of being a Christian at the same time as having to don the Islamic abaya?
“In order to prove direct discrimination, our member would need to identify an appropriate comparator, whether real or hypothetical. If she could prove that she was treated less favourably than this actual or hypothetical comparator, then it could be argued that she has suffered discrimination on grounds of religion or belief.”
Did the Union not consider the situation of a Muslim cabin crew member? If a Muslim cabin crew member went to Saudi they are able to profess their religion freely and retain any outward sign of faith, however Lisa as a Christian is prevented from doing so. Article 9 of the Human Rights Act says this is illegal. As a Christian Lisa would have no access to a minister of her faith if needed in Saudi.
Maybe in the harsh light of public scrutiny Amicus / Unite can now see the importance and the reasons behind Lisa’s letter of 28th March 2006.
Excerpt from Lisa’s Letter:
“I draw your attention to my contract of employment section 3.2.”
“Cabin Crew are required to serve the Company in any part of the world as and when required and shall perform such duties in the air and on the ground as the Company may REASONABLY require.”
As you see it does not simply state as your letter indicated that “you are required to operate any of the routes that BMI operate”. That paragraph that you refer to in the contract of employment also contains the word that I have also indicated above, “REASONABLY.“
“The above paragraph must be read with reference to the preceding paragraph. The aforementioned problem relating to credibility and causation will, in all probability, de-rail the comparison exercise before it begins,
Indirect Discrimination on grounds of religion or belief:
“In relation to indirect discrimination, this occurs when a provision, criterion or practice is applied to a group of people, which discriminates against a particular class of people, the majority of whom hold beliefs similar to the complainant, and detriment is suffered by the complainant who is part of that class.”
Similarly to direct discrimination, causation is required to prove indirect discrimination, and our member may experience difficulties in this regard in relation credibility, particularly given that her initial and prolonged complaint regarding flying to Saudi Arabia was on safety grounds.”
Now we have proved that the Union are WRONG in this assumption, Lisa raised the religious aspect in the letter of 20th Feb 2006 and that duties demanded by BMI must be REASONABLE in the letter of 28th March 2006.
“If our member could prove causation and indirect discrimination, which is by no means certain, BMI may defend themselves by suggesting that due to the nature and context of the employment, holding a particular religion or belief (or in this case not holding it) is a genuine occupational requirement of a flight attendant’s role.”
An outrageous statement for the British Union Amicus / Unite to make. That the union might even suggest that a defence of BMI might legitimately use, might be to subjugate one’s religion in order to work as cabin crew for BMI will deserve the contempt that this statement by the Union will attract.
“The defence of justification would also be available to the employer. Basically, BMI would have to show that the discriminatory act alleged was a proportionate means of achieving a legitimate aim. Our solicitors would suggest that the choice afforded to cabin crew staff in August 2005, and the various written explanations provided thereafter, when balanced against the business’s need to compete in a worldwide market would probably be found to be justified. They would be likely to satisfy the requirement that any measures leading to a disparity in treatment corresponded to a real need and were proportionate and necessary to that end.”
BMI prove themselves that it is not proportionate to wear the Islamic abaya as female BMI chefs are not required to. Also there is no requirement for women to be expected to walk behind the men. Therefore that argument fails. It was NOT a proportionate means, as the Saudi Embassy confirms, to insist that BMI’s female crew walk behind the men and wear the Islamic abaya. The month after Lisa was dismissed the updated memo issued by BMI had the “female crew are expected to walk behind the men” demand removed. What was the reason BMI dropped that requirement, who authorised it? Why did Amicus / Unite not investigate this?
Why were Amicus / Unite not aware that in 2002 Col. Martha McSally successfully proved that there is no requirement in Saudi for Western females to wear the abaya, after the Saudi Embassy in Washington confirmed there was no requirement. The result was a vote in the US Senate of 93/0 making it illegal for any female employed by the USA to be either informed or suggested that they wear the Islamic abaya.
Please click the link on the right for further details on the Col McSally case.
“Whether a requirement or condition is justifiable is a question of fact to be determined at Tribunal, but our solicitors would opine that BMI’s actions (in relation to our member and in relation to flying staff to Saudi generally) were probably justified.“
Did the Union take BMI’s “word” for the “proportionality” of the discriminatory demands? If so, why? Members pay the Union subs for “checks and balances” on an employer to ensure its demands are reasonable. Amicus / Unite totally failed in this respect. They took Lisa’s subscription and did not provide the service Lisa paid for.
If the Union’s legal team had been professional they would have been in no doubt that BMI’s demands were evidently not justified. Again, the Col. McSally case proves this.
“It is our solicitors’ understanding that Unite have requested this advice prior to our member’s appeal hearing, Our solicitors are sure that they need not remind you that the contents of this advice should not be disclosed at the appeal hearing. However, while our solicitors understand that our member may be disappointed with the above advice, they would suggest that she may wish to consider one further issue.“
“You will note that there are a limited number of potentially fair reasons for dismissal, and any reason which does not fall within one of the defined categories cannot be a fair reason to dismiss (albeit that one of the potentially fair reasons is the rather broad ‘some other substantial reason 1). If our member was able to prove that BMl’s request that she attend a flight to Saudi Arabia was orchestrated so that she would refuse, with a view to justifying her dismissal, then her dismissal cannot have been on the grounds of the misconduct alleged, because it would pre-date it.”
“In our solicitors opinion a claim for unfair dismissal does not have a reasonable prospect of success because the dismissal would appear to have been on grounds of conduct, wherein the employer formed a genuine belief, following a reasonable investigation, that our member was guilty of failing to fulfil her contractual duties without a proper reason.”
The Union Amicus/Unite’s legal team are therefore saying Lisa was wrong to refuse a duty that a) She had not attended a course or receive a full service and safety brief that BMI said was required when flying to Saudi and b) She refused a duty that contained blatant discriminatory demands that do not have any support whatsoever from the Saudi Embassy or the UK Foreign Office website.