A very important case for every trade unionist and activist is taking place in an unremarkable Newcastle office building.
Sacked nurse Yunus Bakhsh is taking the Northumberland Tyne and Wear NHS Trust to an employment tribunal (ET). It is the culmination of three and a half years of Yunus battling to save his job and win justice.
An extraordinary amount of evidence has built up. Each of the main figures at the ET must constantly dive between six giant lever-arch files full of documents.
Despite tens of thousands of pages of background material, the issues at stake are essentially simple:
- Should the Trust have attached any importance to an anonymous letter that accused Yunus of being a sexist and a bully towards fellow workers and union members?
- Was management’s decision to suspend Yunus from work in September 2006, and then trawl for further evidence of wrongdoing, because of his role as a prominent and effective trade unionist with a national reputation?
- Was the Trust guilty of racial discrimination and did it sufficiently research the possibility that the accusations against Yunus were motivated by racism?
- Can the Trust rely on the evidence of Kerry Cafferty? After she made very serious claims about Yunus’s behaviour she was revealed to be a Facebook friend of open fascists and a member of Facebook groups that were a focus for Nazis.
- Should the Trust have continued with the disciplinary hearing against Yunus, even though he was ill and unable to represent himself?
- Did the decision – by a mental health trust – to continue with a disciplinary hearing against a worker who the occupational health service said was suffering from mental health problems amount to disability discrimination?
Documents presented at the tribunal showed that Kerry Cafferty, Heather Stephenson and Michael Dodds gave statements to management that were used in the disciplinary case. They were allowed to be anonymous, and Yunus was denied their names, until this month.
The three made their statements after their Unison union branch had decided to back Yunus in his campaign against his sacking. The same three made similar allegations to Unison, which were later used to remove Yunus from union office.
The tribunal also heard that statements had been gathered from a wide range of witnesses for use in management’s investigation. But three statements were omitted from the final report – at least two because the witnesses refused to sign the testimony they were supposed to have given.
Last week Roy McLachlan, the Trust’s then chief operating officer, gave evidence over three days about the key issues. He was asked why Yunus was not given all the statements gathered by the investigation, despite the disciplinary procedures clearly saying everything must be provided.
He was further pressed on why anonymous witnesses had been allowed even though, as Yunus’s barrister Robert Askey said, the Trust’s “policy is silent on this issue”.
McLachlan replied that there were some areas where common sense was an authority to go beyond the rules laid down.
He was then asked why, at one point, the disciplinary hearing against Yunus had been suspended for 145 days to allow a race grievance to be heard. It was then restarted with what Askey called “incredible speed” and with no possibility of delay despite Yunus’s serious illness.
McLachlan agreed that this was a “particularly difficult decision” and “less than ideal”. Nevertheless he had to balance the interests of other witnesses who had been suffering stress. However, he was unable to provide any evidence of this.
Askey said that Yunus’s opportunity to put forward his case had been “irredeemably disadvantaged” by not being able to present his own arguments or question witnesses.
It was particularly damaging, he added, because at an earlier hearing Yunus had been told he could question witnesses at the employment tribunal!
The tribunal will continue until Easter, restarting on 19 April. A verdict from the three-person panel – a union representative, an employers’ representative and a judge – is expected in the week after the restart.
Yunus was scheduled to give evidence himself on Wednesday, Thursday and Friday of this week. Every message of support and donation he gets for legal expenses will help his case.
It is not a common experience for trade unionists to actually get to an ET hearing and then win.
Of the 39,000 cases of unfair dismissal that were dealt with from April 2008 to March 2009, 25 percent were withdrawn, 42 percent were settled without going to court through Acas arbitration, 11 percent were unsuccessful at a hearing and just 10 percent of the overall number were successful at a hearing.
For race discrimination just 3 percent went to a hearing and were successful. It is also very expensive to assemble legal advice, and Yunus’s case is unusually lengthy.
We cannot allow trade unionists, particularly black ones, to be picked off and condemned through anonymous letters and witnesses.
We cannot allow activists to be picked off by the “evidence” of those who frequent fascist websites. Procedures must not be pushed aside when it suits management.
Make donations payable to Defend Yunus Bakhsh Campaign and send c/o 46c Lawe Rd, South Shields, Tyne & Wear, NE33 2EN
Send messages of support to email@example.com