Unite members providing talking therapy services have been successful in their unfair dismissal and failure to consult claims against their employers, and had their employed status recognised. The employers are third party providers who tender for the services through the NHS PCT.
Proposals by the PCT that the provision of talking therapy services could be developed and enhanced into one integrated service began in 2011. The consultation process prompted counsellors who were considered self-employed to begin to question and consider their own employment status.
Their employment ended in October 2012, when The Awareness Centre became responsible for the provision of the services, with the employment of some employees in the Clapham and Streatham offices transferring to the Awareness Centre Limited, under TUPE (Transfer of Undertakings (Protection of Employment Rights)).
The counsellors who were considered self-employed were not consulted and did not transfer, their employment being terminated on the assumption they were self-employed and, therefore, not protected by the TUPE regulations.
Unite Legal Services acted on their behalf, and Sally Nailard, regional officer said she was very pleased with the outcome:
“Evidence provided clearly suggested that had our members been treated as employees and not unfairly dismissed, they would have transferred and their employment continued with the Awareness Centre. We are pleased that compensation for unfair dismissal and loss of earnings has been rightly awarded to each of them. Another bonus is that justice has not only been served for Unite members but, for co-workers too. This is a success for Unite Legal Services and all our members should take comfort from knowing that our legal services are at hand to act for members and their families.”
Peter Kavanagh, regional secretary said “We were successful in this case as a result of arguing that counsellors who were considered self-employed for more than 4 years were actually employees. This case emphasises that whether or not you are an employee will depend on the circumstances of your employment and not necessarily on whether you are called an employee and is a step forward in preventing employers using bogus self employed status to avoid statutory rights.
"If you believe that you are, in fact, an employee, with all the rights attached to employment, then you should ensure that your rights are recognised. The real success here is Unite Legal Services. Our members were successful and as Unite members, received 100% of their compensation. In this day and age every worker should be in a union to receive legal support in the workplace.”