July 02, 2007

Complaint against Michael Scott, Universities and Colleges Union Solicitor

20th February 2007,

Dear Ms Hunt/Mr Mckney, [UCU leadership]

As Michael Scott’s [senior solicitor] employer I would like you to investigate my complaint against the Union solicitor and his failure in the provision of legal services to me on behalf of NATFHE (now the UCU) before I take up the matter formally with the Law Society. My complaint against Michael Scott is as follows:

Michael Scott as Union solicitor breached the conflict of interest rules of the Law Society. He revealed in the London Tribunal that he was NATFHE’s budget holder and ultimate decision maker in regard to the provision of legal services and so there was a conflict of interest in M. Scott assessing the merits of Dr D’Silva’s racial discrimination claim in which he claimed had no merit. M. Scott in the London tribunal could not explain why he had removed Waquar Ahmed an ethnic minority comparator who was also being discriminated by Professor Leach from his race relations questionnaires except I infer to undermine his claim to show that the difference in treatment was based on race M. Scott to justify his perverse decision on the 13th March 2003 cited Cornelius [1987] and the Khan case [2000] and again on the 22 July 2003 knowing that the Race Amendment Act 2002 rendered these cases obsolete as one could not preserve one’s position by denying the applicant a grievance.

He also did not afford the applicant advice to progress his issues that having claimed racial discrimination his employer had not addressed his complaint which was a BREACH OF THE RACE RELATIONS ACT. This was a breach of his professional service and CONDUCT TO SAFEGUARD THE CLIENTS INTERESTS.

M. Scott again on 15th Sept 2003, part way through Dr D’Silva tribunal case when he requested legal assistance undermined the applicant’s request. He claimed he had given the correct advice in his request for legal assistance even after being reminded of the Race Amendment Act 2000. This case law used to deny him merits as stated were rendered obsolete by the Race Amendment Act 2000 and acknowledged as such by the finding of the London Tribunal, 2006 which stated “it was a concoction”. There was a conflict of interest in M. Scott giving advice being the fund holder for legal aid which resulted in his advice always being legally flawed. M. Scott was also hostile to the claimant for not going down the ADR route rather than the legal route but could not justify his advice when questioned why. M. Scott informed the Tribunal he had been on courses updating him on changes in the law so knew what he was doing.

M. Scott knew NATHFE’s procedures for the processing of legal aid applications by the local branch that documents would not be sent by the local branch to Head office unless they were complete. He claimed he was copied documents from the local office including his letter of the 21st Jan 2004 which was the remainder of his complete legal application form but however decided to undermine the applicants legal aid application and his position with other NEC officials by claiming that the applicant had not complied with its procedures and that he had not received a signed legal aid form to deny him legal services.

It was NATFHE’s local office’s duty to send the signed legal aid form to M.Scott office any losses of the form in transit to NATFHE’s head office was the local offices responsibility not the applicants. It was NATFHE’s Head office and its local branch’s responsibility to process Dr D’Silva’s legal aid application form in a professional manner. He failed to enquire why the local branch had not sent the form or whether the legal office had lost the form despite receiving the accompanying documents or immediately send him a new form.

The local branch confirmed in the Tribunal that they had received the form and duly processed it according to their procedures. Neither less he failed to provide Dr D’Silva a professional service and waited until the 8th July 2004 almost six months latter to send him a new legal services form knowing that only the local and Head office could provide him the forms which was a breach of his duty of care. He also did not take on board the applicants statements in regard to there being a conflict of interest which there was.

M. Scott realising that Dr D’Silva had determined that he was undermining his request for legal services having contacted the CRE about his conduct then used the pretext of the late delivery of documents to deny him legal services. On the 5th Aug 2004 he requested the applicant provide the agreed trial bundle by next week or on his return from holiday taken on the 16th August 2004. Five days latter quicker than Royal Mail parcel post in a letter dated the 10th Aug 2004 he denied the claimant legal services stating he was in breach of clause 6.2.

He again failed to provide an adequate professional service and it took the threat of a race discrimination claim and a meeting with NEC officers at the claimant’s own expense to re-instate legal services. He again failed to provide him an adequate professional service as union solicitor and member of the Law Society.

M. Scott in his instruction to Nick Toms failed to obtain a fee note for his services but he also had not agreed a fee which he informed those present in the employment tribunal. He denied Dr D’Silva Counsel of the applicant’s choice claiming they were too expensive whilst he paid over £3000 in fees for a Counsel he wanted to provide the applicant with the merits that he wanted him to have which was in breach of the Union’s legal scheme. The claimant’s own counsel informed him he would win his claims in regard to promotion and the events in the Tribunal resulted in him winning the remainder. He again failed to provide me an adequate professional service as union solicitor and member of the Law Society. This was a breach of professional conduct.

M. Scott gave incorrect legal advice when he again sited the Khan case in conference with Nick Toms in 2004 knowing such advice was rendered obsolete as a result of the race amendment act and so undermined the merits of Dr D’Silva’s case and denied him legal representation at his case management hearing. M.Scott denied the applicant the written merits of his case from counsel. It again took the intervention of the CRE to get M. Scott to instruct N. Toms to provide the merits of his claim. This was unprofessional and a breach of confidence and trust and he again failed to recluse himself from the applicant’s case as their had been hostility and continued hostility against the claimant for pursuing his case and not pursuing the ADR route..

M. Scott when informed that there was a breach in confidence and trust on showing him that his legal advice was flawed and was aimed at undermining the applicants claims, but did not recluse himself from the decision process regarding legal services and further undermined the applicant’s claim and denied him legal services in 2005. He again failed to provide him adequate and an impartial professional service as union solicitor and member of the Law Society.

On the 31 March 2005 the claimant requested a review of his NATFHE’s decision (M. Scott’s decision) to deny him legal services. On the 8th April 2005 Paul Mackney provided his reply. The reply was written by M. Scott and this was in breach of the conflict of interest rules of the law society. He again failed to provide the claimant an adequate professional service as union solicitor and member of the Law Society.

M. Scott knew that their was a conflict of interest in his handling of the applicant’s legal services and as a result on the 6th July 2006 the last day of the applicant’s tribunal case against NATFHE informed him of his solicitor’s department perverse interpretation of the solicitor’s conflict of interest rule by providing its new legal scheme to deny members who questioned his perverse advice by claiming they were now in conflict with the Union and in breach of legal services. The failure to disclose the change in the Union legal Scheme in regard to the conflict of interest during the Tribunal case in July 2006 was unprofessional and a further attempt to add injury to feeling and cause the applicant detriment. He again failed to provide the claimant an adequate professional service as union solicitor and member of the Law Society.

I would like your speedy decision on my complaint so I can progress this matter to the Law Society for their adjudication.

Yours Sincerely, Claudius D’Silva.
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UCU Reply: The complaint exceeds the three month time-limit for submitting a complaint.

If the academic union behaves like this, no wonder employers can get away with anything.

5 comments:

Anonymous said...

"I would like your speedy decision on my complaint" and "UCU Reply: The complaint exceeds the three month time-limit":

I see this is dated 20 Feb - how long did the speedy response take?

Anonymous said...

I believe its time to expose UCU's legal assistance programme as being designed to serve the interests of the employers and not the employees.

Cases of sabotage like this one are all too common and refusal to take on legal cases that are strong and bonafide are also too common.

It also seems that it's getting tougher for employees of a different race/religion to get justice since solicitors don't seem to want to put forward claims under the RRA.

Dr Howard Fredrics said...

Here is an email letter I wrote to Sally Hunt, Jenny Golden (regional UCU official) and Hamish Park (UCU legal official) on 22 June 2007. To date, I've not received even the courtesy of a reply. Has the level of discourse between members and the Union reached the point where they don't even bother replying anymore? I've decided therefore to open this one up to the general public for comment and to expose UCU's failure to act in the interest of all members.
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Dear Sally, Jenny and Hamish,

I am writing to each of you today to ask for your assistance in seeking justice in a matter that I believe has important implications for all UCU members.

As you may already know, I have fallen victim to acts of criminal witness intimidation, in violation of the Criminal Justice and Police Act 2001, at the hands of Mr Donald Beaton, University Secretary of Kingston University, and have more recently learned that Prof Peter Scott, Vice-Chancellor of the University in all likelihood, ordered Mr Beaton to commit these rather serious and troubling acts on his behalf.

All evidence points to guilt on the part of these individuals, who are, quite shockingly, members of senior management, however, unfortunately, a number of events have prevented them from being held to account for their actions. Moreover, they/the University have not denied that these individuals have committed the acts in question, as there is, in my view, rather compelling documentary evidence to support a conviction on these charges.

The only justification or explanation that has thus far been offered by the University's lawyers, who have represented Mr Beaton following his indictment by the Magistrates' Court on 20 April 2007, is that while the acts in question, if committed in connection with a civil or criminal matter in a wide range of "relevant proceedings" (e.g. County Court, High Court, Crown Court, Magistrates' Court, etc) would be illegal, the Act does not explicitly list Employment Tribunal proceedings under the set of "relevant proceedings" for the purposes of the Act. In other words, according to the University's solicitors, committing witness intimidation in connection with ongoing Employment Tribunal proceedings, does not amount to a criminal act because Employment Tribunal proceedings are not "relevant proceedings."

The effect of this view, if it were to be upheld as a matter of law, is to create an "open season" on claimants and respondents alike with respect to such proceedings, as in effect, witness intimidation would become legal in Employment Tribunal cases.

What has since transpired is that a hearing was held on 10 May 2007 before a District Judge, Hon. Stephen Day. Judge Day wisely ruled that the case should be continued in anticipation of the possibility that the matter would be taken up by the CPS for prosecution. He also ruled that were the CPS to take the case and were they to then decide to drop it for any reason, my wife and I could take the case back as a private prosecution, which is how it was launched in the first instance.

This week, the CPS notified us that they had, indeed, decided to take on the case, but that they had decided to drop the matter altogether on the grounds that there was insufficient evidence, since, in their view, Employment Tribunal proceedings did not constitute "relevant proceedings" for the purposes of the Act. To my surprise and dismay, I learned today at a hearing before the Court, that we would not simply be able to take the matter back to continue it as a private prosecution, but that it would be formally ended.

As I understand things, our only viable option would be to refile the matter as a private prosecution before the County Court. In discussing our options with my Branch Rep, (Name deleted) who so kindly attended today's court proceedings and who was extremely supportive of my efforts to seek justice in this rather extraordinary matter, (name deleted) felt that one possibility would be to file a petition with the County Court for a District Judge to hear arguments as to why Employment Tribunals should, as a matter of law, be considered to be "relevant proceedings" for the purposes of the act, notwithstanding the fact that such proceedings are not explicitly referenced, on the grounds that Parliament must surely have intended for witness intimidation to be a crime for such in such a clearly bona fide civil proceeding as an Employment Tribunal case, and that it could not possibly have been their intention for witness intimidation to, in effect, be legal in such proceedings. Following a positive ruling on that, he suggested that we could then launch a private prosecution on the matter, having already achieved a clear view on whether such proceedings constitute "relevant proceedings" in respect of the intentions of Parliament, and therefore as a matter of law. Thus we would file to separate actions in sequence, the first being to decide matters of law and the second to decide whether or not the facts then suggest that Mr Beaton and Prof Scott had, indeed, committed illegal acts as set forth in the allegations.

This seems to me like a reasonable set of steps, though given that the case is relatively simple and given that following (name deleted)'s suggested course of action would likely take more time to pursue, it might very well be that both steps could be accomplished in one case, namely a private prosecution, part of which could be devoted to first establishing the matters of law, and then the case could continue along to deal with matters of guilt or innocence.

In the end, I would certainly be open to either possibility as a course of action, but in all instances, I feel so strongly that a serious injustice has taken place, and that if allowed to stand, this case will set precedent in respect of any FE/HE employer (or employee) being able to resort to witness intimidation in Employment Tribunal cases with total impunity. That will mean that witnesses in such cases will feel reluctant to come forward and that important and compelling evidence, (such as that which Kingston University has attempted to suppress), of wrongdoing will be prevented from seeing the light of day, thereby depriving UCU members of their right to have their concerns properly aired before a Court of Law.

I am therefore asking each of you to consider seriously the matters at stake in this case in respect of their potential and likely impacts on all UCU members now and in the future. And I am asking that you take appropriate action to support me in pursuing this case further in the Courts so that the rights of UCU members to be free from intimidation in Employment Tribunal cases is preserved.

Specifically, I am taking the unusual step of formally requesting legal support and or any other support that UCU can provide so that this matter can be taken forward, since there will, indeed, be costs (albeit, hopefully not excessive costs) involved in pursuing this matter vigorously. I do realize that such support is not normally provided as part of UCU's Legal Assistance Scheme, and I am not specifically requesting such support under this scheme. Rather, I am asking that UCU consider providing support under whatever auspices it feels are appropriate under the circumstances.

Again, I believe this to be an unusual and important case, one that is worthy of being supported by UCU on behalf of all of its members, and so I therefore urge you to support my efforts. I look forward to your prompt written response to my request for support and to receiving whatever support you feel that UCU can offer.

Please feel free, as well, to forward my letter to any other UCU officials whom you think would need to see such a request for support so that it can be duly considered. I would also urge you to speak with (Branch Rep), who has seen the relevant evidence in this case, in order to gain directly his valuable insights on the matter.

Thank you for your time and consideration.

Sincerely,

Dr Howard Fredrics
UCU Member

Anonymous said...

As someone above has already said: 'I believe its time to expose UCU's legal assistance programme as being designed to serve the interests of the employers and not the employees.

Cases of sabotage like this one are all too common and refusal to take on legal cases that are strong and bonafide are also too common.'

This mirrors my experience with this union. Although I would point out fee paying union member are the employers. It would do the legal dept and others at the London HQ to be reminded of this.

Anonymous said...

Dr Howard Fredrics, did you get a response from UCU? I am in a similar position with this union. They are not willing to lift a finger to support my case as a member.