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The trade union right to represent

Published: 

Mon 9 September, 2019

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In times of desperate need knowing where to turn for help is vital and for employees that assistance can be in the shape of a trade union or its representative.

There are number of situations that occur in the workplace in which a trade union and its representatives (Rep) have the right to represent employees. This includes

  • Accompanying an employee to a disciplinary or grievance hearing with management
  • When an employer is planning to make 20 or more people redundant within 90 days.
  • If there is going to be a business transfer or takeover
  • To develop the best possible health and safety procedures with an employer
  • Discuss any concerns an employee has about an employer

Here we look a bit more closely at some of the most common situations in which the trade union right to represent is utilised in the workplace.

Perhaps the most fraught circumstances in which a Rep is called upon are those when an employee is facing a fight to save their job, or has good reason to complain about a work-related issue.

When an employee is facing disciplinary action an employer may opt to hold an investigation meeting, also known as a fact finding meeting.  An employee does not have a right to be accompanied in investigation meetings or informal disciplinary meetings.

All workers, however, do have the right to be accompanied in a formal grievance or disciplinary hearing by a Rep (1)

When acting as a companion at a grievance or disciplinary hearing a Rep can address the hearing in order to put and sum up the employee’s case and respond to any view expressed at the hearing (2)

These are challenging financial times for many businesses and the need to remain competitive may mean an employer has to review and change the way in which it operates, which can lead to redundancies. 

Redundancies involving 20 or more workers are called ‘collective redundancies’ (3) During a collective redundancy, there are special obligations on the employer. These include notifying the government that the redundancy is taking place and consulting with Reps if there is a trade union in the workplace.

It is not uncommon for an employee dismissed by way of redundancy to complain that the selection process was not fair, or that they have been unfairly dismissed.

Unlike a disciplinary or grievance hearing there is no statutory right for employees to be accompanied at meetings under a redundancy procedure. It is, however, good practice for employers to allow employees to be accompanied at redundancy consultation meetings, as it demonstrates an intention to act fairly.

Employers must also inform and consult with recognised trade unions when there is a proposed transfer or takeover of a business. In a Transfer of Undertakings (Protection of Employment), known as TUPE, the terms and conditions of the employees who transfer in the sale are preserved (4).

In almost all cases, the new employer cannot change the transferred employees' terms and conditions to match those of its existing employees and unions can play a crucial role in such agreements.

On matters of health and safety and employers has to consult with all employees (5). It should be a two-way process.

In a small business the consultation can be directly with the employees, but if there is a trade union it can take place with a health and safety representative chosen by the union.

Trade unions also have the right to represent members in negotiations (‘collective bargaining’) over pay and terms and conditions of employment and in working to find solutions to workplace issues

References

1  Right to be accompanied [Internet] www.legislation.gov.uk https://www.legislation.gov.uk/ukpga/1999/26/section/10 Cited 3.9.19

2  Acting as a companion [Internet] www.legislation.gov.uk https://www.legislation.gov.uk/ukpga/1999/26/section/10 Cited 3.9.19

3 Collective redundancies [Internet] www.citizensadvice.org.uk https://www.citizensadvice.org.uk/work/leaving-a-job/redundancy/check-if-your-redundancy-is-fair/check-if-youre-part-of-a-collective-redundancy/ Cited 3.9.19

4   TUPE, [Internet] www.gov.uk https://www.gov.uk/transfers-takeovers Cited 3.9.19

5   Matters of health and safety [Internet] www.hse.gov.uk http://www.hse.gov.uk/involvement/ Cited 3.9.9

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