Massive win for nuclear whistleblower Alison McDermott against Sellafield for re-arguing the tribunal decision by employment judge Lancaster

The Sellafield site

First hurdle over clearing the way for a two day hearing in January to decide on whether the 13 grounds mean the ruling is overturned

An employment appeal judge has ruled that the decision by Judge Philip Lancaster dismissing whistleblower Alison McDermott’s case against Sellafield and the Nuclear Decommissioning Authority can be challenged now on no fewer than 13 grounds.

This extraordinary ruling on Friday in London by Employment Judge Tucker took less than 10 minutes to grant after she read the submission by Andrew Allen, KC, Alison’s counsel , means practically everything Judge Lancaster decided is open to challenge at an Employment Appeal Tribunal hearing in January. She decided she did not need to hear oral submission from Andrew Allen.

Alison McDermott; Pic credit BBC

In an earlier particularly harsh decision Judge Lancaster had decided that she wasn’t even a whistleblower, for producing, at Sellafield’s request, a damning report revealing serious issues in the HR function including allegations of bullying and harassment. Prior to this Alison had raised repeated concerns about racism, homophobic and foul language and a workforce too frightened to complain to senior management there.

Despite admitting that some of the concerns Alison raised were: ‘very offensive and concerning ” the judge ruled: “The Claimant has not, on the facts, established any alleged disclosure which is properly capable of amounting to a protected qualifying disclosure or the doing of a protected act, or that there is any causal link between what she actually said or wrote.”

It is worth providing a brief recap of what Sellafield and the NDA have done to Alison.  She spoke out repeatedly about serious abuses of employees, including abject failures within the HR department, when the HR Director, Heather Roberts dismissed her overnight, allegedly for financial reasons. But when Alison started litigation, Sellafield changed its tune and Ms Roberts said she had had concerns about her performance and had only mentioned financial reasons to be kind. 

Sellafield then dragged out litigation for three years before making a last-minute offer of £160,000. When they realised the carrot hadn’t worked, they decided to go on the attack and subjected her to a brutalising cross-examination in which her character and competence were repeatedly vilified until she finally broke down on the witness stand.   But even then, they weren’t finished with her.  As soon as Judge Lancaster ruled in their favour, they lost no time pursuing her for costs   And all of this will have a hugely chilling effect on their 11,000 nuclear workforce.  

Judge Lancaster claims he concentrates on anti-discrimination cases

Judge Lancaster, who says he specialises in anti-discrimination cases, went on to support Sellafield’s allegation of “underperformance” describing the report as ” questionable and insubstantial ” and without ” meaningful analysis”. Judge Lancaster completely ignored that management consultants PwC ruled that the HR function was not fit for purpose some three months later.

By then Heather Roberts, then the HR director at Sellafield, had already sacked her on the spot and immediately buried the damning report and admitted to lying about the reasons.  Despite knowing that Alison had become so ill and had no income, the judge made a costs order against her and allowed Sellafield and the NDA to put in a claim for £40,000 costs against her.

Now Judge Lancaster’s own judgement will be in the firing line in January when an appeal tribunal examines 13 arguable grounds of appeal. In a skeleton argument, citing a previous judgement, Andrew Allen, KC, finds a plethora of errors in law which led to Judge Lancaster’s bizarre judgement that she was not a whistleblower. One paragraph that encompasses this – citing no fewer that eight grounds that the case could be challenged gives a flavour of this.

“It is an error of law for a tribunal to fail to give adequate reasons for its decisions so as to enable the losing party to understand why she has lost. The EAT has already decided that it is arguable that this tribunal have erred in law: in applying s27 EqA – in failing to recognise protected acts; in applying s109(2) EqA in identifying the correct relationship in dealing with agency; in failing to engage with the Claimant’s submissions in particular on adverse inferences, protected acts and agency; in failing to take a step back and look at the totality of the evidence; in failing to be Meek compliant; in failing to ensure compliance with the overriding objective to ensure that the parties are on an equal footing; in failing to ensure that the hearing was heard in public in failing to recognise that the Claimant has advanced argument on the facts and the law in relation to the agency point; and in failing to comply with the overriding objective in dealing with the case fairly and justly.”

Andrew Allen KC

Andrew Allen, KC also argued that the tribunal had failed to follow the principles of the law in pursuing costs again Alison which says should only be made in exceptional circumstances especially in the case of whistleblowing cases.

This case and Sellafield’s response is attracting wider attention. It is not just the UK press. On Friday, representatives of a prominent Norwegian environmental campaign group, Neptune Networks flew in from Oslo to attend the hearing.  

Norwegian national press to follow the case

Neptune Networks has been raising serious concerns about Sellafield for the last two decades and confirmed that they will be attending the main hearing on 17 and 18 January 2020 and they will be accompanied by members of the national Norwegian press.

Finally a little note about Judge Lancaster. He is also the chair of directors of a Christian charity, Spacious Spaces, based in Leeds, which offers treatment programmes for alcoholics and drug takers. Here he is known simply as ” Phil”. This is the note about him on their site.

“Phil Lancaster practised as a barrister, specialising in criminal cases. He is now an Employment Judge dealing primarily with the anti-discrimination laws. He is a member of St George’s Church, where he has been a church warden and served on the parochial church council. He is married with fairly recently grown-up children and a large collection of Bob Dylan cds.”

I find it a little perplexing given his Christian background and commitment to treating drug addicts and alcoholics that he is not concerned about what Alison McDermott exposed about the pressures on staff inside Sellafield who are working in the most hazardous nuclear site in Europe.  I also find it deeply disturbing that he made snide and pejorative comments about Alison both during the ET hearing and in the merits and cost judgment. 

An example of this is the nasty insinuations he made about Alison when he accused her in the costs judgment of bringing a claim ‘to advance her career across the nuclear sector’ even though she had turned down a £160,000 to bring her claim to court.   He also seems oblivious of the huge strain and damage whistleblowers face to their careers when they blow the whistle.   If his judgement is found to be so badly wrong by the Employment Appeal Tribunal, there must be some serious questions about justice in the employment tribunal system.

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How Sellafield and the Nuclear Decommissioning Authority misuse taxpayer’s money to hound a whistleblower

Alison Mc Dermott, whistleblower

One of the biggest tactics to frighten whistleblowers by big companies and health trusts is to threaten whistleblowers exposing malpractice, corruption and discrimination and say they have to pay hundreds of thousands of pounds in costs unless they settle or drop their claims for detriment at employment tribunals.

The tactic regularly used by firms and health trusts in employment tribunal cases is based on a lie. The maximum an employment tribunal can order costs is £20,000 per respondent. Only if it goes to the High Court can a firm or health trust demand such eye-watering sums.

However Sellafield, the NDA and the Business, Energy and Industrial Strategy ministry have decided that it is worth pursuing whistleblower Alison McDermott, a consultant formerly employed by Sellafield for the maximum £40,000 shared between the NDA and Sellafield. They know she has no income and they have even tried to close down her crowdfunding site to raise money to defend herself against their costs claim.

Her whistleblower site is here and you can donate to bring the sum up to £10,000 within the next 14 days otherwise she loses the lot.

Damning report revealed relentless bullying at Sellafield

Alison was called in by Sellafield’s human resources department to investigate their working practices and produced a damning report revealing employees were subjected to appalling racist, sexist and homophobic abuse and relentless bullying. Only 11 per cent felt they could raise issues with the company without reprisals and four percent thought they got honest answers. Faced with such a damning account Sellafield sacked her rather than change its ways.

This led to an employment tribunal case which not only found in favour of Sellafield and the NDA but saw her publicly denigrated by Sellafield’s barrister, Deshpal Panesar KC, who accused her of ‘acting out of revenge’  of being ‘intent on ruining careers’ of being ‘self-absorbed’ and ‘a woman clearly in pursuit of a windfall.’ 

The NDA tried to buy her off with a £160,000 pay out in return for her silence on what she had found at Sellafield. She refused to accept – arguing among other points that such a culture permeating a nuclear facility was dangerous given serious issues of health and safety. She tried to raise this with BEIS but they refused to meet with her having signed off the £160,000 settlement.

Now a judge has ruled that she is entitled to appeal on six different grounds – and she has secured Andrew Allen, KC, a lawyer who represented Dr Chris Day, in his recent whistleblowing tribunal case against Lewisham and Greenwich NHS Trust, to represent her.

But she has also to face a costs hearing. So how is this being pursued by the NDA and Sellafield.

Sellafield

I put in two freedom of information requests to Sellafield and the NDA on how much they had spent and the revelations were very interesting. Sellafield has already spent £5640.16 on external advice plus using its own staff to pursue Alison. The NDA spent £7524.58 on external legal advice and an unknown sum on staff time to pursue her. So before we even get to court over £13,000 has been spent using taxpayers money. Furthermore the NDA according to an internal memo spent money on lawyers trying to close down her whistleblowing appeal with no success. The total cost spent by both organisations fighting Alison has exceeded £500,000 of taxpayers money.

The replies also revealed that the boards of both organisations including the Chief executive officer of the NDA , David Peattie ,were ” apprised” of the decision meaning that it reached board level. BEIS was also informed and approved the costs case but declined to comment about it because of current legal proceedings. What on earth are the boards of these organisations spending their time on this when they have much serious work to do on issues like nuclear safety and disposing of old nuclear power stations.

Now when this gets to a tribunal there will be a two day hearing and according to internal NDA documents it was paying over £5500 a day for top notch barristers. It is reasonable to assume so was Sellafield. This means the hearing will cost another £22,000 as they will be represented separately.

So altogether we are taking about £35,000 as a minimum ( excluding staff time) to recover a maximum of £40,000. That is – if they win. And even if they win most judges rarely award the full sum if it is a litigant in person. It is more likely to be £5000. If they lose this is taxpayers’ money being thrown down the drain.

If this was a commercial company I very much doubt it would past muster as a ” business case”. It is only because the boards of these organisations have unlimited access to taxpayers money that they can pursue this.

And to my mind this is only being pursued to hound a whistleblower who has produced some very damning information about life in Sellafield. This has called Sellafield’s reputation into question and they don’t like it, hence this vindictive approach.

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Judge’s extraordinary injunction against HS2 protestors banning nearly one million people from trespassing anywhere on 170 mile route

HS2 Protest : pic credit: Construction News

The day after the official mourning period of the Queen ended Mr Justice Julian Knowles issued a judgement that made British legal history for its scope and scale of curbing future protests in England.

His ruling was an astounding victory for the HS2 Ltd – builders of the £98 billion high speed rail line – and Grant Shapps, the former transport secretary recently sacked by Liz Truss, the new PM.

They had sought an injunction to stop campaigners against the route from disrupting activity – such as building tunnels near London Euston and Staffordshire or trying to stop destruction of the countryside – such as in Wendover, Buckinghamshire- by injuncting all the people involved.

But Mr Justice Julian Knowles gave them more than they could have dreamed of – by injuncting any protest activity along the whole route from London to Crewe- and extending it to categories of unknown people as well as the 59 people named in the injunction bringing in hundreds of thousands of other people who support the protestors.

He ruled that “there has been significant violence, criminality and sometimes risk to the life of the activists, HS2 staff and contractors”, adding that “much of the direct action seems to have been less about expressing the activists’ views about the HS2 Scheme, and more about trying to cause as much nuisance as possible, with the overall aim of delaying, stopping or cancelling it via, in effect, a war of attrition”.

Massive legal precedent set by judge

The legal precedent the judge has allowed could open the doors to other national bodies – such as EDF who run state owned nuclear power plants – or Sellafield to seek such wide ranging injunctions against nuclear protestors – or new fracking companies extending their local injunctions to cover the whole of the country. Or the Just Stop Oil protestors – who have dug tunnels at oil terminals – could find them subject to a national ban.

Parliamentary sovereignty invoked

The judge’s reasoning was simple. He was not taking sides on whether he approved or rejected the construction of HS2. Instead he said the scheme had been approved and debated by Parliament and to protest against it by causing criminal damage was effectively in breach of Parliamentary sovereignty. He denied that his decision would have a chilling effect on protests because people could protest peacefully without having to trespass on the site or block construction entrances.

He bought the arguments of HS2 that these had already cost them £120m and could cost £200m and provided work for 27,000 people. He also accepted that HS2 could not afford to employ security staff or ask the police to patrol the entire route. He saw no point on HS2 issuing damages claims against the named individuals because they had no money.

He defended the huge scale of his injunction by saying: “I have anxiously considered the geographical extent of the injunction along the whole of the HS2 route, and whether it should be more limited.

“I have concluded, however, given the plain evidence of the protesters’ intentions to continue to protest and disrupt without limit – ‘let’s keep fucking up HS2’s day and causing as much disruption and cost as possible. Coming to land near you’ – such an extensive injunction is appropriate.”

Warning to over zealous security staff

He did however issue a warning to overzealous security staff injuring protestors citing the case of one person who knelt on a protestor’s neck – similar to the case of George Floyd who died in the US when a policeman knelt on his neck and sparked the Black Lives Matters protests. Presumably he didn’t want a Protestors Lives Matters campaign in the UK.

What is more interesting is the service of the injunction – which could land people in prison if they disobey it.

For the 59 people named he ruled: “Service of this Order on Named Defendants may be effected by personal service where practicable and/or posting a copy of this Order through the letterbox of each Named Defendant (or leaving in a separate mailbox), with a notice drawing the recipient’s attention to the fact the package contains a court order. If the premises do not have a letterbox, or mailbox, a package containing this Order may be affixed to or left at the front door or other prominent feature marked with a notice drawing the recipient’s attention to the fact that the package contains a court order and should be read urgently.”

But for the unnamed people the judge ruled that Facebook and Twitter had made large number of people know about the injunction. The protestors’ fundraising account had 265,268 followers.

Grant Shapps at the HS2 Old Oak Common construction site Pic credit: HS2 Ltd

“A non-exhaustive review of Facebook shows that information about the injunction and/or the link to a fundraiser has been posted and shared extensively across pages with thousands of followers and public groups with thousands of followers. Membership of the groups on Facebook to which the information has been shared amounts to 564,028.”

So there was no need for HS2 to individually inform these people.

A spokesperson for HS2 Ltd said: “HS2 Ltd welcomes this judgment and its approval of the route-wide injunction. As Justice Knowles makes clear, this injunction will not, and is not intended to, stop legitimate protest. Instead, we hope the injunction will prevent the violence, intimidation and criminal damage these protests have frequently caused, harming the HS2 project and those working on it, and costing the UK taxpayer millions of pounds.”

But it looks as though protestors may challenge this judgement

The Guardian reported :” Lawyers representing one of the environmental activists. Nicola Hall of Robert Lizar solicitors, representing the activist James Knaggs, said: “This is a disappointing outcome. This injunction represents a concerning extension of the powers of a state-owned limited company to control and police large swathes of land across England. There is a concern that it constitutes a wide-ranging restriction on protests opposed to HS2 and is of extremely large geographical scope. It applies to very large areas of land, much of which is unfenced and unmarked.”

I can see this issue developing now Liz Truss is committed to creating growth and allowing free market policies at the expense of the environment, human rights and equal justice for all.

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Industrial espionage, destroyed documents, search warrants and contempt of court – all around the home delivery of your groceries

Ocado grocery delivery van. Pic credit: Which?magazine

Extraordinary story of how two high flying former Ocado executives planned to use the company’s trade secrets to get business from rivals Waitrose

You will know that home delivery of your groceries is competitive with supermarkets vying with each other for your business. All rely on some form of new technology to get this done.

This week a final court judgement saw a City solicitor being convicted of destroying documents required by a court order in a culmination of an extraordinary saga that has raged for the last three years over home grocery deliveries.

The case had been brought by Ocado Plc, the parent company of the on line grocery retailer, which used to deliver groceries for Waitrose and now delivers groceries for Marks and Spencer as well as its own goods.

One of the co founders of Ocado, Jonathan Faiman and later another executive, Jonathan Hillary, left Ocado to set up a rival grocery technology business called  Project Today Holdings Ltd.

Marks and Spencer logo; Pic Credit: Wikipedia Commons

But as the courts were told their business plan was far from ethical. Mr Faiman tried to get a deal with M&S but was beaten by his former employer, Ocado. At a meeting with M&S to discuss the plans with the company’s chief executive, Steve Rowe, Mr Faiman insisted his colleague -Mr Hillary, still working for Ocado, should have a secret identity only known as” Jon”. Unfortunately for him when the trial began Steve Rowe recognised that Jon was Mr Hillary. A memo also revealed Mr Faiman had contacted senior Ocado staff using ” burner phones”.

Mr Faiman then opened talks with Waitrose and wanted to win their business using Ocado’s trade secrets. To get their business he got Mr Hillary to copy them. Over dinner at Mr Hillary’s home Mr Hillary provided Mr Faiman and Mr McKeeve with documents. These included a copy of a set of contract terms recently agreed between Ocado and M&S entitled, “Agreement for the Provision of the Apricot Smart Platform” (the “OSP Contract”), and operational schedules for Ocado’s contract for the provision of the Ocado Smart Platform to Groupe Casino (a French Supermarket group) (the “Operational Schedules”).

Discussions with Waitrose proceeded constructively, and on 15 May 2019, Mr Hillary resigned from his position at Ocado for a new role with Today. On 16 May 2019, Waitrose announced a new commercial relationship with Today. On 23 May, Mr Hillary was placed on gardening leave by Ocado. He remained an Ocado employee.

Ocado came to be concerned about Mr Hillary’s activities in communicating with Mr Faiman. They suspected he had handed over confidential information and/or had been working for Today while still employed by Ocado, in breach of his contract of employment.

According to Mischon de Reya, Ocado’s solicitors Faiman and Hillary later admitted in a settlement statement “While still employed by Ocado, Mr Hillary, at Mr Faiman’s request, provided Mr Faiman with a significant number of confidential documents belonging to Ocado, including documents relating to the running of Ocado’s automated warehouses and the key agreement under which Ocado would provide its online grocery technology to the joint venture with M&S.”

Mr Faiman then admitted he was taking the hard copy confidential documents with Ocado’s trade secrets to Waitrose with the aim of cementing a business deal just as Ocado, went for a search warrant to find out whether its documents had been stolen. Waitrose when it realised what was happening pulled out of any deal.

But the situation was going to get much worse. The courts granted a search warrant covering the Connaught Hotel, a luxury five star hotel in Mayfair, London where Mr Faiman was staying and Mr Hillary’s home in Ascot and the firm’s offices in The Foundry in Fulham. The search warrant covered documents, electronic devices and mobile phones and Ocado’s secret documents were recovered from Mr Faiman’s hotel rooms.

Connaught Hotel, Mayfair where lawyers found the Ocado documents

Mr Faiman decided to involve his friend Raymond McKeeve, a City solicitor , who counted his company as a client. Mr McKeeve had been involved in the Waitrose negotiations. When told of the search warrants he panicked rang an IT employee and told him to ” burn all” – ie start destroying them. This happened just after the search warrants had been served.

The reason, as the courts were to discover, was that the company had a sophisticated private message and call system -known as the 3CX app- as a way of disguising its dealings between Mr Faiman and Mr Hillary so Ocado would not know. The system could be destroyed permanently at short notice. Mr McKeeve was particularly worried as his wife’s name Belinda de Lucy who then was elected as a Brexit Party European MP for South East England, without her knowledge and he thought she would be drawn into a dispute with Ocado. Her name was first used as pseudonym for Mr Hillary to communicate with Mr Faiman.

Ocado bring claim for criminal contempt against City solicitor

Ocado plc brought a claim for criminal contempt accusing Mr McKeeve of intentionally interfering with the administration of justice by causing the deletion of documents which were essential to Ocado’s case and thwarting the purpose of the search warrant. They also tried to extend this to other documents and email systems.

Mr Faiman and Mr Hillary had to agree to permanently destroy all the stolen documents and a pay a very large undisclosed sum to Ocado in a settlement. His company is now in administration – the last known accounts at Companies House showing it owed over £8m to creditors- including nearly £2m to HM Revenue and Customs. Mr Faiman declares his official residence is in the tax haven of Monaco.

But for Mr McKeeve it was not all over as he faced criminal contempt charges.

Mr Justice Adam Johnson Pic Credit: Judicial Appointments Commission

At the hearing Mr McKeeve, a City solicitor with a number of private equity clients, clearly did not realise how serious this had been. The judge, Mr Justice Adam Johnson, described him in his judgement as “an intelligent and driven individual. At the relevant time, he had a successful practice as a solicitor in the private equity field, which he was proud of.”

The judge said “at times [he] exhibited a degree of arrogance (for example, in the evidence he gave about his ability to “annihilate” complex legal documents at high speed). He was also at times combative in the evidence he gave.”

The judge said he had shown ” shame and embarrassment” for what he had done saying at one point: “The idea that I would have committed a contempt of anything just horrifies me. The word is so perfectly chosen because it is a most horrendous word. I would only show contempt where enemies of the state or people are trying to harm my family. The idea of showing contempt for the rule of law and the court is just beyond the pale.”

McKeeve’s act of colossal stupidity – judge

But the judge said despite everything he “could not quite bring himself to accept that what he had done wrong might amount to a contempt of Court.” What he did the judge concluded his conduct had been a ‘spontaneous act of colossal stupidity’.

Judge Johnson found him guilty of contempt of court over the destruction of the phone system but not on other additional cases brought by Ocado,

A spokesperson for Ocado said: ‘We felt compelled to bring this solicitor’s conduct to the attention of the court as it was the right thing to do. Ocado has been vindicated in its decision to do so. We welcome the judgment but take no joy in it. It is regrettable that a solicitor failed in his duty to uphold the administration of justice and was found to be in criminal contempt of court.’

The case was adjourned until October 4 to decide what sanctions Mr McKeeve will face for his contempt.

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Another pension scandal: Incompetent financial advisers rip off steelworkers in the wake of the collapse of Tata Steel

Scunthorpe Steelworks Pic credit: Alan Murray-Rust

It is not just the DWP that can make a fine mess of pensions. A report just out from the National Audit Office reveals how thousands of steel workers have been swindled out of their their company pensions by incompetent and in some cases dodgy financial advisers.

Rocked by the sudden collapse of Tata in 2016 – brought out for a £1 by private equity group Greybull only to collapse again and be taken over by a Chinese firm, this uncertainty led to the government separating out British Steel’s pension scheme from the company to protect people who still had a final salary scheme.

But unfortunately some were offered to swap their pension for a far more risky package that no longer guaranteed a final salary pension.. The scheme now closed allowed steelworkers to retire on a final salary at 60 or 55 if they were made redundant. Who today would not welcome such a good deal.

But some 8000 steelworkers chose to use their right to transfer out of the pension scheme. Some 95 per cent of them were advised by independent financial advisers. Nearly half the steelworkers were given dud advice.

The workers were given only a short window to transfer by companies that had little experience in dealing with such a large number of people. The companies also made a shed load of commission for themselves in handling the deals.

The report concludes that the workers in places like Teesside and Scunthorpe were vulnerable to pension mis selling by financial advisers. Already spooked by whether they would keep a job, they thought it was a good idea to opt for a private pension. They have now lost an average of £82,600 – with some losing up to £489,000. The maximum claim they can make is £85,000 or £50,000 of the firm collapsed earlier. The total amount lost comes to £18m.

Industrial scale of the rip offs

The industrial scale of the rip offs can be shown by how many firms have been fined . The Financial Conduct Authority (FCA) has issued  £1.3 million of fines and has 30 more enforcement investigations ongoing. It has also changed its approach to regulating the pensions advice market in response. Many of the advisers at the time were one horse businesses -too small then to be regulated.

The investigation has also revealed how badly bodies supposed to protect ordinary people can cope with the problem – The FCA and the Pension Ombudsman- do not come out well – just as the DWP and Parliamentary Ombudsman don’t do a good job in rectifying complaints. The FCA has now sharpened up its act as a result of this – and not before time.

Just like the Parliamentary Ombudsman the process to get redress is complex and difficult to understand, Perhaps it is no wonder that only only 25% (1,878) of members who transferred out of the BSPS [ British Steel Pension Scheme] have sought redress through complaints. The FCA is yet to decide whether to implement a consumer redress scheme for BSPS members, in which all firms involved would have to review their advice and potentially offer compensation.

The report reveals that many don’t even realise they can get redress – so bad have the authorities been in not telling them. Many of them won’t be able to recover all the money because the firms have gone bust and will have to rely on a national compensation scheme.

Meg Hillier chair of the Public Accounts Committee

Meg Hillier, chair of the Commons public accounts committee, sums it up well:

British Steel pension members were badly let down by placing their trust in the very system designed to protect them.

“The handling of the BSPS case was a failure from top to bottom. Many of the pension advisory firms gave bad advice to customers and the FCA, whose job it is to regulate these firms, was asleep at the wheel.

“Efforts to improve the pension advice market and provide compensation will be too little too late for many BSPS members. “The bottom line is that many pension members have been left out of pocket and seen the rewards for their years of hard work melt away”

The Financial Conduct Authority issued this statement:

“In a letter sent today, the FCA has set out its expectation that firms in the scope of a potential redress scheme should retain assets and should not try to avoid their responsibilities.

The FCA has warned it will take such action as it deems necessary if a firm attempts to avoid redress liabilities. 

Former BSPS members should continue to check whether they received unsuitable advice and find out how to complain at fca.org.uk/bsps.

Firms should continue to progress any existing FCA required Past Business Reviews and engage in any ongoing enforcement investigations or supervisory work connected to the British Steel Pension Scheme.”

There seems to be another moral of this story, Be wary of silken tongue financial advisers and research very carefully what you want to do with your pension. Remember not all of them are competent and some are just plain dodgy.

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Finally shopworkers to get more protection: Tougher law for those who attack them

In the dying days of last week’s Parliament the government finally quietly agreed that shopworkers alongside other workers who serve the public should get greater protection from abusive customers.

USDAW campaign poster

Ministers are using the Police, Crime and Sentencing Bill to make it an aggravated offence to assault or abuse people who are serving the public. At present it is up to the judges’ discretion whether it is under the present sentencing guidelines.

It follows years of campaigning by USDAW, the retail workers union, to get more protection for shopworkers and growing evidence, sadly, of more violence, abuse and threats, from customers to staff.

The government chose the House of Lords to amend the bill last Wednesday night.

Baroness Williams., minister of state at the Home Office: Official portrait

Baroness Williams of Trafford, a junior home office minister, said: “The amendment places in statute the aggravating factor applied by the courts in cases of assault where an offence is committed against those providing a public service, performing a public duty or providing a service to the public.

…..”This includes assault occasioning actual bodily harm, wounding with intent to cause grievous bodily harm, malicious wounding and threats to kill, as well as an inchoate offence in relation to any of these offences. These are the assault offences most likely to be experienced by front-line workers. Importantly, the provision also allows the court to apply the aggravating factor to any other offence, where the court considers this factor relevant.”

“This amendment will reinforce in statute the seriousness with which the courts should treat these offences. It will send a very strong signal to the public that assaults of this kind are totally unacceptable. The Government want to ensure that all those who serve the public can feel protected from abuse when working.”

Baroness Trafford added: “

“During the pandemic we have all seen some appalling stories of how shop workers have been treated. USDAW has been really good in standing up to that.

I pay tribute to John Hannett, the former general secretary of USDAW, to Paddy Lillis, the present general secretary, to the staff and to the many hundreds of thousands of USDAW members who have not let this issue rest. I also pay tribute to some really good employers, the supermarkets that understand the problems their staff have. The Co-op, Tesco and many others have stood up and backed the union and its members. This amendment has also been led by the work of Daniel Johnson MSP in Scotland. He got his Private Member’s Bill through last year. “

Lord Vernon Coaker, official portrait

The move was welcomed by all peers include Lord Coaker, who as Vernon Coaker was Labour MP for Gedling in Nottinghamshire, and an USDAW member, who proposed a specific offence to protect shopworkers resulting in one year’s imprisonment.

The union itself described it as ” a step in the right direction” after years of campaigning for it.

Former Tory minister Baroness Neville-Rolfe said: ” That is against a background of 455 security incidents a day, according to the BRC,[British Retail Consortium] and very few prosecutions.

Inadequate police response

“The police response to these incidents has historically been inadequate. We need to ensure that the police have the right resources and can put a higher priority on prosecuting these retail crimes. This is particularly important given the role of retail workers in enforcing Covid restrictions such as masks, but also in addressing knife crime and shoplifting23>

She succeeded, in getting a promise from the minister to review how the new measures were working in a year’s time.

This was backed up by Lord Dholakia, a Liberal democrat peer, who said: “forces such as Thames Valley Police inform local shops that they will not send out officers to deal with shoplifters who steal less than £100-worth of goods. How can this foster trust and build confidence? It cannot; it means that many businesses feel as if they are alone in this fight—a fight that is a risk to their very business.”

Natalie Bennett Green P:arty peer

Green Party peer Baroness Natalie Bennett also pressed the minister whether the change in the law would cover threats over the phone or on line. The minister thought it would.

One extraordinary omission in this debate was any reference to the fact that Therese Coffey, the work and pensions secretary, is about to submit an application from the United Kingdom to ratify the International Labour Organisation’s new convention outlawing violence and harassment at work.

This change in the law speaks directly to both the spirit and letter of the new convention and will certainly be used as an example that the UK is complying with it. Yet it seemed to have passed ministers and peers by. Perhaps this government is so disjointed that Therese Coffey has not talked about it with Priti Patel, the home secretary. Given all the furore on everything else perhaps she forgot to tell her.

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Treasury to save hundreds of millions as DWP scheme to help the young get jobs misses target

This blog often criticises the Department of Work and Pensions for its treatment of pensioners and the disabled. The ministry often responds by saying it is balancing this by helping young people. So how well is it doing on that front?

Not very well according to a National Audit Office report published today. It looks into the running of the Kickstart programme – a jobs programme aimed to take young people aged 16 to 24 off Universal Credit and into work. It has the laudable aim of getting the most unemployable youngsters into a job and off benefit.

Launched in September last year with the aim of helping 250,000 young people and employers get £1500 a person to help them run the scheme and pay the young the minimum wage. Some £1.9 billion was allocated by the Treasury to do the job.

The target was to reach this number by the end of this year. Instead the NAO reveals it has been extended to next March and will only help 168,000 of them. The target was hindered by the double whammy of the pandemic. As the report said; ” Repeated lockdowns meant many of the young people who started to claim Universal Credit at the start of the pandemic were on Universal Credit for over a year before the scheme could get going at scale. As the programme did begin to scale up, the economy was reopening, which increased the risk of government subsidising jobs that would have been created anyway. “

The government’s logo for the scheme

Indeed this was not the only target missed. It was aimed at whose who would find it difficult to get jobs, yet anybody aged 16 to 24 could get a place. The ministry didn’t evaluate what sort of jobs the young people got and whether it was good value for money . It didn’t entirely help the ” levelling up ” process either. The largest number of jobs created were in central London though including poor boroughs like Tower Hamlets and Lambeth. One area in the North East did get a good share but job offers were sparse in rural areas notably Lincolnshire, Cumbria, Norfolk, Powys and the Scottish borders.

The largest number of jobs offered were in admin, the desperate hospitality sector and the retail trade. The lowest number of placements were with law firms, transport operators, animal welfare and beauty treatments.

Firms caught cheating the young

Where company checks were made by local DWP managers there was a disturbing number of firms caught cheating the young by not paying them or putting their health and safety at risk. The report found “As at 20 October 2021, the Department had made 30 decisions to cap an employer or Gateway’s grant, [ limit the numbers a firm could employ]and 165 further decisions to end a grant agreement, including 105 decisions to remove an employer from a grant agreement with a Gateway.”

The DWP did not investigate whether the jobs would be filled anyway without the scheme either.

The result is that by no means all the £1.9 billion allocated by the Treasury will be spent and it is not known whether the rest has been spent wisely.

To be fair to DWP staff the report says the work coaches employed to help young people were enthusiastic about getting young people into work. It notes one or two individual successes including a young person with a criminal record and a drugs problem, getting a job and another unconfident young person getting an enjoyable job..

The report said: “When a Kickstart vacancy in dog daycare came up they wanted to apply, but lacked confidence in their application. Following discussion with their work coach they volunteered for an online course on animal care, after which they were successful in their job interview. Their work coach reports they are really enjoying their job, and would not have succeeded in getting it without Kickstart.”
The NAO praises the DWP for getting the Kickstart programmer off the ground but is not happy aboujt the evaluation of the project by the ministry.

Gareth Davies, head of the NAO

Gareth Davies, the head of the NAO, said:

“At the start of the pandemic, DWP acted quickly to set up Kickstart to help young people into work when youth unemployment was predicted to rise significantly.

“However, DWP has limited assurance that Kickstart is having the positive impact intended. It does not know whether the jobs created are of high quality or whether they would have existed without the scheme. It could also do more to ensure the scheme is targeted at those who need it the most.”

A similar view is expressed by Meg Hillier, the Labour chair of the Commons Public Accounts Committee.

So once again a good idea is spoiled by a ministry that does not evaluate whether its programme – one of the most expensive run by the department costing around £7,000 per participant,- is doing its job.

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Sellafield Whistleblower Case: Claimant faces a £20,000 legal bill for necessary Freedom of Information and Subject Access Requests

Alison McDermott: Whistleblower

By Philip Whiteley and David Hencke

A law firm in the Sellafield whistleblowing case has put in a bid for £20,000 costs against the claimant Alison McDermott, in part to deal with Freedom of Information requests – even though it emerged at the Tribunal hearing that the firm’s client had failed substantially to provide relevant evidence.

The costs application by Pinsent Masons on behalf of the Nuclear Decommissioning Authority, if successful, could set a precedent that weakens a citizen’s right to request information. It would appear to undermine the will of Parliament, given that when the Freedom of Information Act was passed MPs specifically rejected the idea of levying a fee for FoI requests.

The other law firm in the case, DLA Piper, simultaneously put in a bid for £20,000 costs against Ms McDermott – the maximum allowed without being subject to a further hearing – listing other factors, principally changes the claimant made in the detail of her case.

Sellafield site Pic credit: gov.uk

At the three hearings in the case held so far there has been overwhelmingly strong evidence indicating that Ms McDermott’s FoI requests were both proportionate and necessary. She said: “The governing body [the NDA] in its ordinary disclosure, released one email. Then, when I put in direct subject access requests, many more emails proved that they had been asking questions about the termination of my contract. Then, at the hearing it emerged that Heather Roberts [former HR director at Sellafield] had withheld a key document that said that the NDA was very concerned about the timing of my termination and that conversations had been held. This information was never released.

“The Freedom of Information requests also revealed that contracts had been awarded for HR services, including EDI [equality, diversity and inclusion] services, for the value of £17 million. It was only after that that they [Sellafield] switched from financial reasons [for dismissal] to one of performance.”

Ms McDermott, an independent EDI consultant hired by the nuclear plant Sellafield, had her contract terminated the first working day after making a report detailing systemic discrimination and bullying at the plant, a pattern confirmed by a BBC investigation which reported earlier this year.

At the tribunal hearing in June-July 2021 her barrister, James Arnold, pointed to directly relevant evidence only coming to light shortly before the hearing – after a period of more than two years since litigation began. He was not contradicted by either Respondent (see our coverage on 30 June). This hampered Mr Arnold’s ability to call witnesses, and cross-examine them. Ms McDermott was not successful in linking the detriment she experienced to the reports she made, although she is appealing the ruling.

Law Firm Pinsent Masons claimed FOI requests were ” vexatious”

The law firm, Pinsent Mason, claimed that the requests for Freedom of Information and Subject Access Requests, were part of vexatious, abusive, disruptive and unreasonable behaviour by Alison McDermott against both Sellafield and the Nuclear Decommissioning Authority.

In a letter to the court the firm said she had “submitted four Data Subject Access Requests and six Freedom of Information Requests over the last three years, the majority of which were complex and involved significant work and additional legal time and cost by the Second Respondent [the NDA] to answer.”

It added it meant ”significant inhouse legal resource time and wider staff management time responding to data subject access requests and Freedom of Information Requests linked to the claim”.

Pinsent Mason said the NDA had spent £200,000 fighting the case and wanted £20,000 – the maximum it can claim at a tribunal – back.

Solicitors Regulation Authority takes no action against law firms

A critical response came from the Solicitors Regulation Authority who claimed that Ms McDermott had confused the difference between using all the information from Subject Access Requests with what was relevant to the case at the tribunal. The letter suggested that she should have highlighted more information from the requests if she thought the tribunal was not looking at the issue – citing the ruling from the judge.

The letter from the SRA making this point, dated 30 September 2021, cites from an earlier Tribunal ruling – following the strike-out hearing in July 2020. This was fully one year before the full hearing, where further directly relevant evidence came to light, as noted by Mr Arnold, including the correspondence in which the governing body admitted to nervousness about the timing of her dismissal.

DLA Piper wipes metadata and says it was a mistake

On another matter, as reported earlier, metadata was wiped from a piece of evidence in the case while in possession of DLA Piper, representing Sellafield, shielding information on authorship and time of creation of the document. The metadata was released to the claimant upon request.

The matter was referred to the Solicitors Regulation Authority, which decided in September to take no action. It accepted that this was a genuine mistake by DLA Piper, although its own investigation was inconclusive.

Pinsent Masons, for the Nuclear Decommissioning Authority, did not respond to a request for a statement or interview.

A spokesman for DLA Piper said: ‘As a matter of course, DLA Piper does not comment on client matters. We refute allegations of wrongdoing on the firm’s part. The employment tribunal’s decision is open to the public and we would refer you to this for details of the case and the outcome.’ The Solicitors Regulation Authority did not respond to a request for an interview or statement.

Too expensive to tell you – the DWP cover up on whether they are really compensating millions who lost out on a Guaranteed Minimum Pension

The Department for Works and Pensions has compounded the big scandal over millions of people who are entitled to compensation for the ministry’s hidden decision to scrap an annual increase worth anything up to £27,000 over the lifetime of a pension for those, particularly women, who were contracted out of Serps by private companies.

Previous blogs highlighted this scandal after the Parliamentary Ombudsman ruled that there was maladministration in not telling millions of people that they would lose out when the new state pension was introduced in 2016. Only two people were compensated with sums of £500 and £750.

But the Ombudsman wimped out in enforcing the compensation for millions by allowing the DWP two years to take action to compensate people and then allowing them to create a factsheet which didn’t tell the full story.

Suspicious that the DWP was still avoiding to do anything a campaigner on this issue, Chris Thompson, put in a freedom of information request to the DWP to find out how many people have asked to be compensated,

The answer has now come back. The DWP said:

We can confirm that we hold information falling within the description specified in your request. However, we estimate that the cost of locating, retrieving and extracting the information for these requests, when aggregated, would exceed the appropriate limit of £600. The appropriate limit has been specified in regulations and for central Government it is set at £600. This represents the estimated cost of one person spending 3½ working days in determining whether the Department holds the information, and locating, retrieving and extracting the information.”

This was only asking about emails and letters the ministry had received since August 12 this year – a matter of a few weeks- it is rather suspicious if not laughable that this would take more than 3.5 days to find out. Surely the department would have a simple database to do a computer search.

Suspicion that nobody or few people have contacted the DWP

Mr Thompson suspects there is another reason.

” I think the reason the DWP don’t want to give me the information is that no one has contacted them or only a few which would show up by putting it on GOV.UK so that people only find out by happenchance which is not very satisfactory. For GOV UK to be a suitable way for people to find out about loss of GMP indexation then a majority of the 11 million people should see it. I wonder if they did any sort of assessment to find out how many people they thought  would find the fact sheet on the GOV.UK website.”

Again this bodes badly should the women born in the 1950s and 1960s achieve compensation for maladministration over the up to six year delay in receiving their pensions when the age was increased from 60 to 66. It sounds like the government won’t be very helpful in telling people how many were compensated.

However they may be another way to get hold of what is happening or rather what is not happening.

Stephen Timms MP to press DWP over numbers

Following some lobbying by Mr Thompson and myself Stephen Timms, the Labour chair of the Commons works and pensions committee, plans to tackle the government over this omission.

He has been promised a six month review by the ministry on how the use of the factsheet is working.

He told us that he intends to write to the ministry in December demanding that as part of the review they disclose how many people have applied for compensation.

This means whether they like it or not the DWP will have to spend some money and time finding out – unless they are going to tell Mr Timms that it is too expensive to do the exercise. We shall wait and see but for some of the people who don’t know they are entitled to this money – it could be a matter of life and death – as they may already be in bad health and could die before they realise.

Previous blogs on this:

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HS2: The train going nowhere

Boris Johnson loves mad grandiose building projects ( remember the third London airport in the Thames Estuary) and more recently a tunnel/bridge under the Irish sea from Scotland to Northern Ireland.

Picturew of the design for the first HS2 trains

But what is emerging is that that even the most basic grandiose project -London’s Crossrail link and the high speed railway from London to Birmingham can’t be built on time to cost or even properly completed. A failure to integrate Crossrail with the rest of the railway system and continual cost rises for HS2 are the main reasons for delays.

MPs on the House of Commons Public Accounts Committee last week achieved one first – getting HS2 to provide some proper figures on the real costs. The entire HS2 project – if ever built from London to Scotland – will be £98 billion if not more. The first phase from London to Birmingham now has a budget of £44.6 billion – of which £11 billion has already been spent but we won’t see any results for the travelling public until 2029 at the earliest if not 2032. And probably in reality even later.

What is more disturbing is that service will initially run only from Birmingham to Old Oak Common in west London -not to London Euston where it can connect with other services.

Whitehall still quarrelling over the plans

Worse still internal Whitehall quarrelling means that they haven’t even fixed the most crucial arrangement – what will the Euston terminus look like.

“The redevelopment of Euston station is currently estimated to cost £2.6 billion. Despite HS2 Ltd telling us last year that the design of the station was ready for planning consent, the Department has spent the past 15 months looking for cost saving options and efficiency opportunities, including the potential for a smaller station.

” HS2 Ltd asserts that it is getting close to the point where the programme will literally run out of time if a decision is not made soon, and that Old Oak Common is being set as the London terminus when the railway first opens to decouple it from the risks at Euston.”

Gigantic building site at Euston. Pic credit: Global Railway Review

This is an extraordinary situation. It is made much worse because the area around Euston Station is now one gigantic building site after homes, shops and private businesses that border onto the existing station were demolished. And people living next to the site are being moved because of the noise and dust. And all for a new terminus whose configuration has still to be determined by the Department of Transport and which could be smaller than currently planned.

Further up the line there are disputes involving the land they are purchasing, environmental damage and pollution problems created by the development.

Volume of complaints rising

The MPs report: “We are already concerned about the volume of complaints on disruption from the programme which does not bode well for the future as more communities will be impacted as construction progresses. HS2 Ltd estimates it has handled 124,000 queries over the past three years and interacted with over 76,000 people along the route.

….”the number of complaints from the public about High Speed 2 has increased as main construction on Phase One has started. Complaints to the Independent Construction Commissioner HS2 rose to 86 in the first quarter of 2021 from 74 in the previous quarter. The majority of complaints are about the impact of construction on roads and traffic, vegetation clearance and about noise and vibration. Due to the scale of the programme and the time until the railway is complete, complaints are likely to increase.”

As part of its ” levelling up ” programme the government has promised to reskill the nation so people can get jobs as part of the regeneration of Britain post Brexit. Yet again the MPs point to further failures. The much trumpeted National College for High Speed Rail was a failure in attracting students and has had to be renamed the National College for Advanced Transport & Infrastructure and, most recently, merged with the University of Birmingham.

The MPs report: “The Department admits that the performance of the college has been disappointing and hopes that its latest merger, new leadership and new curriculum from September 2021 will be an opportunity to get the best out of the arrangement. Yet the Department’s involvement with the college has been limited as it falls under the Department for Education’s accountability remit.”

As for extending the railway to Scotland via Leeds and Sheffield that is in doubt and could be scaled back to Crewe. This has been partly confirmed by Grant Shapps, the transport secretary, who in an interview yesterday with the Financial Times has cast doubt on whether the line from Birmingham to Leeds along the eastern side of England will ever be built – hinting that other projects may have priority.

We want to make sure we get trains to Leeds in a way that actually benefits people on the network and not blindly follow some plan invented 15 to 20 years ago which no longer benefits people.” he said.

This completely contradicts what he said only in May when he promised the government would “complete HS2 and include HS2 on the eastern leg to Leeds”. All this suggests that costs must be mounting up with another U turn in prospect.

If this is levelling up – it is farcical

So what do we have here? An extremely expensive part built railway that may not even initially link Birmingham and central London beset with issues and aeons away from the dream of a high speed line linking Scotland with central London.

If this is to be an example of ” levelling up ” Britain it is just farcical. Meanwhile in the European Union we left the high speed train network goes from strength to strength with new lines and a sleeper train network planned that will reduce the need for air travel – all part financed by British train customers as most of the companies running our train services are owned by state rail companies based in the EU.

Our new high speed train system is going nowhere soon and causing nothing but pain and disruption.

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