Trade Union Representation
A new law is now in force that gives all workers, including casual workers and agency workers, the right to be accompanied either by a trade union representative or a colleague at a workplace disciplinary or grievance hearing.
This new right applies in all companies and organisations however large or small, and it does not matter whether or not your employer normally deals with a trade union.
The same law gives workers the right to have their pay, hours and holidays negotiated for them by their union if the majority of workers are members of the union, or if a majority vote in a secret ballot for the union to negotiate on their behalf. This is called union recognition.
If your union is already recognised then there is very likely to be an agreed procedure for disciplinary and grievance matters. This will probably be better than the rights set out in the new law so you should talk to your union rep as soon as you can.
But even in workplaces where the employer does not recognise a union, you still have an absolute right now to bring a union representative into the disciplinary or grievance hearing.
If your employer thinks you are guilty of misconduct or that you are not doing your job properly it is likely they will start some kind of formal procedure. In law this is called a disciplinary procedure, although some employers may call a misconduct hearing a disciplinary hearing and an accusation that you cannot do your job properly a capability or competency hearing.
Large organisations are likely to have a formal procedure which will be described in your staff handbook or set out in your contract of employment.
But there is no legal requirement on employers to have a formal process. Small employers in particular may not have a set procedure and may want to operate informally or set up a procedure if and when one is needed. At worst you may find that you are simply called into your manager's office and find that you have been sacked. But whatever approach your employer adopts or whatever the procedure is called the law is clear. If the process or meeting could result in a formal warning that you must improve, some kind of sanction taken against you or start a process that may result in you losing your job then in law it is a disciplinary hearing. To be valid you must have been given the opportunity to take a colleague or trade union representative into the hearing with you. There is one exception to this. If you are accused of doing something seriously wrong then you may be sacked on the spot for what is called gross misconduct. Such offences may include such matters as stealing or harassment of other staff or members of the public. Where this happens, you may not be called into a hearing at all.
However, many employers will allow an appeal. This would count as a disciplinary hearing and you have the right to be accompanied. If there is no appeal allowed, and you consider the sacking to be unfair because you are innocent or that you consider your employer has over-reacted to a minor offence, then you may be able to take a case to an Employment Tribunal. This, however, is outside the scope of this section. YFor more check the section on dismissal.
Do not confuse these with disciplinary hearings. The key difference is that a disciplinary procedure is started by your employer, but you - the worker - start a grievance procedure because you are unhappy about something at work. It could be a complaint about your line-manager or it could be about a fellow worker who is treating you badly -perhaps bullying you. Your argument here is that your employer should stop this behaviour.
There is no legal requirement for an employer to have a grievance procedure. But even if there is no formal procedure then a good employer will allow you to raise a serious issue with them.
But not all grievances carry the right to be accompanied. The law says that you can only take a colleague or union officer if the grievance relates to a breach of your contract of employment.
But this does cover a wide range of issues. First of all it obviously allows you to raise any issue set out in your contract of employment. (You should have been given one of these soon after starting work though it may be included in something like a staff handbook).
However, it goes wider than this. The law considers the contract that exists between an employer and an employee to go wider than what is actually written down in the contract of employment.
The conditions that are written down are called "express terms" in legal jargon. Those that are not written down are called "implied terms".
There are two main areas of implied terms that you are likely to find useful when raising a grievance.
First there is a duty on the employer to obey the law. Therefore if you consider that you are being treated in a way that does not fulfil the employer's legal duties then you have a grievance which will allow you to be accompanied.
Second there is what is known as a duty of care. That is your employer should not expect you to work in unsafe or dangerous conditions. This allows you to raise obvious health and safety issues such as having to work alone late at night and deal with the public, and perhaps less obvious issues such as bullying, stress or overwork as they can be risks to your health.
If there is an appeal hearing after a grievance hearing, usually for use where you disagree with the finding of the hearing or part of the procedure, you have the right to be accompanied at that too.
Who can accompany You?
The law says that you can be accompanied by a companion who is either:
- a full time officer of a trade union
- a trade union representative - usually but not necessarily from your workplace
- a colleague from the same workplace
What can your Companion do at the Hearing?
Again, the law is clear on this. The companion may make an opening address on your behalf at the beginning of the hearing. After that they cannot address the hearing again unless your employer agrees. However you may confer at any time, and they can take detailed notes of the hearing which will be very useful if your case ever goes to appeal or ends up in an Employment Tribunal or other court.
But this is a legal minimum. Where unions have negotiated a procedure it is likely that your companion will be free to effectively represent you and be able to speak on your behalf at any time and ask questions of any witnesses.
Before a hearing you should try and find out what your companion will be allowed to do and say. You should certainly take sufficient time to really go through your case and work out what you and your companion will say.
If your companion is not free at the time when the meeting is organised, you can ask for a postponement of up to 5 working days and ask for a different time within those 5 days when your companion is free. The alternative time must be a reasonable one.
What happens if You are not allowed to bring a Companion?
If your employer refuses to let you bring a companion, you should not attend a formal hearing, Instead you should put in writing that you will not attend until you are allowed to bring a companion with you as is your right under the Employment Relations Act 1999.
If you have a meeting with your employer that you think is entirely informal but he or she then tries to give you a formal warning or impose some other punishment, then you should politely ask for the meeting to stop at that point and then be reconvened at a time when you can bring a companion.
If they still go ahead, you should write after the meeting and ask for it to be held again with your chosen companion present. You should also write down as full a note as possible describing what happened at the meeting. But don't forget you can be dismissed on the spot without any hearing for gross misconduct (see above).
If your employer refuses to allow you to bring a companion you can complain to an Employment Tribunal. If they sack you because you tried to take a companion into the hearing, you can claim unfair dismissal at an Employment Tribunal. Unlike some unfair dismissal claims how long you have worked for your employer does not matter.
If you are sacked for other reasons, but you were not allowed to take a companion into the hearing then you are likely to have a strong case at a Tribunal, and you may well get extra compensation.
If you lose out in some other way - for example by losing performance related pay - you can make a claim to an Employment Tribunal.
Any complaint to an Employment Tribunal must be made within three calendar months of the day on which your employer refused to allow you to be accompanied or from the date of dismissal if you are dismissed.
If you are still employed by that employer, the tribunal can order the employer to hold the hearing again and allow you to be accompanied. If you have been dismissed you will be entitled to compensation for the breach of your right to be accompanied as well as compensation for the dismissal if it is found to be unfair. This is a complex legal area and you should seek advice from your union or another advice agency.
Does a Union have to provide a Companion?
While unions will generally do all they can to help a member in genuine difficulties at work - that's what they are there for after all - the law does not require them to provide a companion for their members or for anybody else.
A union will generally judge whether the companion should be a local voluntary union rep (which is more likely) or a full time officer of the union. Some unions have rules saying that they cannot provide representation for members until they have been in the union for a certain amount of time. This requirement is sometimes considered necessary to prevent people joining a union suddenly when they are in trouble, getting free advice and assistance, then leaving, at considerable expense to the union. Some unions will make a judgement about whether a grievance is well-founded and likely to succeed before agreeing to represent someone.
There is no obligation on a workplace colleague to act as a companion either. However, if they do, and your employer makes life difficult for them as a result, they can claim compensation at an Employment Tribunal. If they are dismissed as a result of accompanying you they can claim unfair dismissal regardless of how long they have worked for your employer.
If you join a union, you will probably want your union to be able to negotiate your pay, hours and holidays as well as represent you if you get into trouble. Pay is usually higher and working conditions much better where a union is recognised. Unions act as a collective voice for workers in the workplace and stop your employer from being able to pick on you individually for asking for a pay rise, or better holidays. Good employers recognise unions voluntarily, some encourage new workers to join the union.
But not all employers are good employers. Some say they are neutral, which can mean they will expect unions to go through a full legal process to gain recognition. Others are downright hostile to unions and will do anything they can to stop unions organising or having any role in their workplace.
But the law compels even these employers to negotiate with a union if there is sufficient support.
The process is complex and you will need to work carefully with a union to make sure you are following the proper procedures. But basically you will either need to show that a majority of workers are union members or that a majority vote for union recognition in a ballot and at least four out of every ten workers able to vote have voted. We do not try to explain the full process here as you will need to work closely with a union to make it happen.
So if you want a union to represent you and your colleagues, the first step is to join a union yourself, start to sign up other workers and tell the union that you need their help in winning recognition.
If your employer treats you badly or sacks you because you are a union member, trying to recruit other members or campaigning to get recognition then the law protects you. You should take advice from your union about taking a claim to an Employment Tribunal.