Dear Members,
On the 24th August I reported to you that the NCOA had entered into formal dispute with the Agency given its continued failure to introduce Bear Scotland Holiday Pay.
Currently, engagement with your employer is managed through a staged process the purpose of which is to limit the likelihood of entering into dispute.
In March 2021, through the monthly Trade Union and Employer forum, the NCOA raised its concerns that the Agency had not yet implemented any response to the Bear Scotland rulings. It is my opinion that what followed was a period of prevarication from the Agency, aligned to an informal position it had taken that the Bear Scotland requirements were not really relevant to those working within the NCA.
Despite this unhelpful position (and wholly incorrect), the NCOA felt confident that the Agency would eventually recognise the legal risks facing them and more importantly that they would commence payments to many of our affected members as they are required.
Notwithstanding clear legislation directing the Agency to act to remunerate its staff in response to the ruling it showed no inclination to do anything.
With little traction secured through the monthly Trade Union engagement meetings, the NCOA escalated the issue to the Joint Negotiation and Consultation Committee (JNCC) in June 2022. Our supporting paper made it very clear that we had failed to reach an agreement with those engaged with us at levels sitting below the JNCC. By escalating the matter, we sought intervention from the Chair (normally DGC) following an open discussion with all parties. Our submission paper was unambiguous.
Following the 2014, Bear Scotland Ltd v Fulton court ruling, there was some early tentative engagement between the NCA and its Trade Unions to understand the implications for the Agency.
With this informal engagement not amounting to any proposals from the Agency, in March 2021 on behalf of its members, the NCOA formally raised this matter at the TU Monthly engagement meeting in recognition that this was a:
- Matter of interest to NCOA members and the wider NCA workforce, some of whom had raised it directly with the Executive Leadership.
- A number of NCA officers fall within the terms of the ruling as they are regularly required to work overtime.
- Other Law Enforcement agencies including some who NCA officers work alongside have either settled claims or have proposals in place to deal with the on-going issues.
To date, whilst the NCOA have raised the Bear Scotland ruling formally, the Agency has yet to provide any proposals or other correspondence which would allow the NCOA to provide an accurate update to its members. The NCOA make the following recommendations to resolve this issue:
- The NCA share its Bear Scotland proposals with its TU’s within the next 28 days.
- The Agency then agrees to a period of formal consultation with the TU’s in line with timescales set out in the Employee Relations Policy, with a commitment from all parties to resolve this issue by the 1st September 2022.
- On-going governance for NCA/TU engagement on this issue remains at the JNCC until this matter is resolved.
The day before the scheduled JNCC meeting and in direct response to the NCOA raising the matter, the Agency presented a paper which was addressed to the NCOA, FDA and PCS.
The paper was not embargoed and was not a ‘noting Paper’ either (i.e., Simply alerting us as to what the Agency was doing behind the scenes), It was clearly marked as ‘For Decision’ by us.
Whilst the Agency’s paper included various calculations around the values for future Bear Scotland Holiday payments within the NCA, it was very clear that back
payments would only be made from April 2022.
Whilst the calculations seemed fair and similar to those offered elsewhere in the Police and Civil Service, we felt that April 2022 was not good enough. We were very clear that we sought at least a two year back stop position (this is the maximum permitted period for any unlawful deduction of wages) and could not agree to the option being presented for our ‘agreement’ at the JNCC.
The NCOA sought swift engagement, on the back stop position in particular, enabling us to secure a commitment from the Agency that, ‘an appropriate debated discussion outside this forum will ensue’.
Given that no such discussion then took place, (which as a direct consequence prevented Bear Scotland payments being made in August as planned) - the NCOA entered into formal dispute with the Agency by notifying them in writing on the 22nd August 2022.
The Agency’s response was swift and on Thursday 25th August the NCOA took part in a formal resolution meeting with the DGC in a concerted effort by both parties to prevent escalation which could ultimately lead to ACAS intervention.
That meeting was positive and gave us a strong indication that the Agency understood the challenges we had raised in relation to both the Bear Scotland ruling and the back-stop position which would see any back pay calculated from April 2020.
In light of this positive engagement, we took the decision to halt the formal dispute process and enter into a period of swift, formal consultation to conclude the issue satisfactorily for all parties.
The NCOA does not enter into dispute lightly, but we felt that despite every opportunity to implement Bear Scotland payments for its staff, there appeared to be considerable reluctance from the Agency to do so. Prior to the JNCC meeting of the 14th June 2022, we had not received any recognition from the Agency acknowledging their legal obligations. It is very clear to me that the Agency’s position and the paper presented at that meeting - was only in direct response to the informal and formal challenges raised by the NCOA at the Joint Negotiation and Consultation Committee.
As you might imagine, we are therefore quite disappointed with the Agency’s comms to you on this important issue. I hope that the additional information and detail within this member bulletin helps in your understanding of the position reached.
We will report further as our engagement on this matter progresses and are hopeful that Bear Scotland Holiday pay entitlements will now feature as an intrinsic element of the NCA pay and reward package (where applicable) from September 2022.
Simon Boon
NCOA General Secretary