Ask the expert: Trade union representative

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Where does an employer stand if an employee wants to bring a trade union representative into a disciplinary meeting, rather than a colleague? Gillie Scoular and Esther Smith advise.  

 

The question:
 

We do not have any trade union on site, but a member of staff pays a union fee and wants to bring a union rep into a disciplinary meeting rather than a work colleague. Where do we stand on this? 

Legal advice:
 

Gillie Scoular, partner, Mills & Reeve
 

The right to be accompanied at disciplinary (and grievance) hearings is not as simple as it sounds. An employee (or worker) only has a statutory right to be accompanied at a disciplinary hearing by someone who is either:

  • An employee of a trade union of which he is an official
  • An official of a trade union whom the union has certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings
  • A work colleague

A trade union 'official' has a particular statutory meaning and must either be an 'officer' of a trade union, or someone who has been properly elected or appointed to be a representative of its members. You can ask for written confirmation of this from the trade union concerned . The fact that you do not have a trade union on site does not matter - your employee does not have to be a member of the trade union, nor do you have to recognise it for the right to apply. The right is, however, subject to the employee’s request being 'reasonable'. What that means is not entirely clear, but it would not normally be reasonable for a worker to insist on having a companion who would prejudice the hearing or on someone from a remote geographical location if someone else was suitable and willing to attend.  Assuming the union rep in your query is suitably qualified, therefore, you must allow the employee to bring him or her to the disciplinary meeting rather than a colleague. This is not normally a problem as the role of the companion is quite limited. Also remember that the right to be accompanied only applies to disciplinary hearings - these are hearings that could result in:

  • A formal warning being issued to the member of staff
  • The taking of some other disciplinary action, such as suspension without pay, demotion, or dismissal
  • The confirmation of a warning or some other disciplinary action (such as an appeal hearing)

The right does not therefore apply to redundancy consultation meetings, investigatory meetings or return to work meetings. Finally, remember that, even though there may be circumstances when this is appropriate, an employee has no statutory right to be accompanied to a disciplinary hearing by a friend, family member or lawyer.

Gillie Scoular is a partner and employment law specialist at Mills & Reeve LLP. For further information, please visit Mills & Reeve.
 

* * *
 

Esther Smith, partner, Thomas Eggar
 

The statutory right for an employee to be accompanied at a disciplinary (or grievance) hearing are contained in the Employment Relations Act 1999, and include the right to be accompanied by either a fellow employee or a trade union representative. The legislation does not provide that the employer has to recognise the union in question for collective bargaining purposes, and indeed does not even require the employee to be a member of the trade union in question, although in reality very few union representatives will have the time or inclination to support a non-member. Therefore your employee has every right to bring a union representative to the meeting, even though you do not recognise the union. You are entitled to ask for verification of the representative’s status as a union member, but other than that there is nothing you can do to prevent this person accompanying your employee.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.

 

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18th Aug 2009 22:08

Whilst the statement of the law is correct, I would invite employers who might read the article to give some consideration to the limitations contained in the statute. A trade union official, either employed or lay, will have had both training and experience in representing workers in difficult situations such as disciplinary hearings; conversely, the 'fellow worker', the third category of person approved under the Employment Relations Act 1999 s10 (3) (c), is highly unlikely to have had any training nor any experience. I would argue that this puts both the employer and the employees at a disadvantage. Firstly, the employer, already under a burden to be seen to have acted reasonably (another article on its own), must contend with a companion potentially lacking competency, and ensure that the accused employee receives a fair hearing; not an easy task for many employers, particularly as they too may lack training and experience of handling disciplinary matters. Secondly, the accused employee will be caught up in the emotion of the situation and probably not be able to best express themselves; anything they fail to raise at a disciplinary hearing may prejudice their chance of satisfaction should they be dismissed and apply to an Employment Tribunal. And thirdly, the companion fellow worker, probably lacking in training or experience, is under arguably the greatest burden: if they mess things up their colleague may be dismissed, how do they cope with the guilt; they may not feel particularly confident facing up to management in such a charged setting; they may be fearful of management retribution just for trying to support a colleague; they may be more likely to view things subjectively and therefore fail to adequately represent the best interests of their colleague; possibly worst of all, they may be considered an irrelevance by either management, HR, or both. This whole issue of representation is the subject of a revealing ACAS Research Paper, 'Accompaniment and Representation in Workplace Discipline and Grievance', published in October 2008, at www.acas.org.uk/researchpapers. There are also excellent ACAS publications to assist employers handle such matters; since the repeal of the statutory Grievance and Disciplinary Procedures in April 2009, employers that fail to follow the ACAS guidance may find themselves under an increased financial penalty.

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