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Understanding the role of a Rep at disciplinary and grievance hearings

Published 27 April 2020

If you pay for anything designed to help you when you are in desperate need of help, you are justified in questioning what do I get for my money?

And if you need the help of a trade union representative for a work-related matter the question is a pertinent one.

It is usually when a union member is in dire straits at work and in serious need of assistance when they are likely to turn to a trade union representative (Rep) with a plea for help.

A Rep is a union member who represents and gives advice to colleagues when they have problems at work (1)

The role is wide ranging and includes representing workers with problems and accompanying them to grievance or disciplinary hearings. Here we focus on the role of a Rep at both a disciplinary and grievance hearing.

All employees have a statutory right to be accompanied at a disciplinary or grievance hearing. (2)

It is worth pointing out that Courts have ruled in some cases, such as  Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health (3), that where an employee’s right to practise their chosen profession is at stake they should have the right to legal representation.

In most cases the companion can be a colleague, an official employed by a trade union, or a workplace trade union representative

Trade union membership has increased in recent years although it is well below what was its peak of over 13 million in 1979. The most recent figures show that trade union membership in the UK has increased for the second consecutive year and for the fourth time in the last seven years (4).

An employee can ask an official from any trade union to accompany them at a disciplinary or grievance hearing, regardless of whether or not they are a member or the union is recognised.

At a disciplinary hearing the support of a Rep can be invaluable. Being subject to formal disciplinary proceedings can be unsettling, unnerving and very uncomfortable for an employee.

A Rep can address a disciplinary hearing on an employee’s behalf.  They can present and fully explain an employee’s response to any allegation made against them.

They can also sum up the employee’s case and respond on the individual’s behalf to any view expressed at the hearing.

During the course of the hearing a subject or matter, sometimes unexpected, may arise that the employee wishes to discuss with their Rep. An employee can confer with their Rep during the hearing.

Most employers will allow, and have no objection, to a Rep fully participating in a disciplinary hearing.

The employer is, however, not legally required to permit the Rep to answer questions on the employee’s behalf, address the hearing if the employee does not wish for them to do so or prevent the employer from explaining their case.

If any special arrangements or reasonable adjustments are required to enable an employee to fully take part in a disciplinary hearing, a Rep can ensure that such requirements are accommodated.

It is sadly the case that even with the support of a Rep an employee may be unfairly dismissed. If this is the case the support of an experienced and knowledgeable Rep during the disciplinary process can prove key in any subsequent and successful claim for unfair dismissal (5)

The role of a Rep at a grievance hearing is the same as it is at a disciplinary hearing. The ACAS Code of Practice describes a grievance as a concern, complaint of problem that an employee has (6).

In summary at a grievance hearing  a Rep can: put the employee’s case, sum up the employee’s case and respond on the employee’s behalf to any view expressed at the hearing.

References:

(1) What a REP is: [Internet] www.tuc.org.uk [cited 27.4.2020] https://www.tuc.org.uk/workplace-guidance/union-reps

(2) Statuary right to have representation [Internet] www.legislation.gov.uk [Cited 27.4.20] http://www.legislation.gov.uk/ukpga/1999/26/section/10

(3) Case on employment rights: [Internet] www.xperthr.co.uk [Cited 27.4.2020] https://www.xperthr.co.uk/law-reports/case/Kulkarni-v-Milton-Keynes-Hospital-NHS-Trust-and-Secretary-of-State-for-Health-2009-IRLR-829-CA/4824/?cmpid=ILC|PROF|HRPIO-2013-110-XHR_free_content_links|ptod_article&sfid=701w0000000uNMa

(4) Union members has increased:: [Internet] www.tuc.org.uk [Cited 27.4.2020] https://www.tuc.org.uk/blogs/trade-union-membership-rises-100000-single-year-challenges-remain

(5) Experienced rep furing disciplinary process: [Internet] www.castleassociates.org.uk [cited 27.4.2020] https://castleassociates.org.uk/support-centre/what-unfair-dismissal

(6) Role of a rep: [Internet] www.acas.org.uk [Cited 27.4.2020] https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html

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