At a disciplinary hearing the support of a Rep can be invaluable. They should understand their role and help find a constructive solution. Taking someone with you is called the ‘right to be accompanied’. Introduction to the Citizens Advice service, Future of advice: our strategic framework 2019-22, an initial meeting where your employer tries to find out what happened, talk things over with you during the hearing, when everyone involved is usually at work and available, within 5 working days of when the meeting was originally due to take place. Employees and workers have a legal right to be accompanied by a trade union representative or colleague at a disciplinary or grievance hearing. As a result, most HR professionals have advised the employer to disallow external legal representatives They can choose to be accompanied by a co-worker or a union representative. The employee has a right have a colleague or a trade union representative accompany them to the disciplinary hearing. Employers are entitled to restrict the choice of companion to a trade union official or fellow worker. It is possbile that after the investigation the employer may not go ahead with a disciplinary at all. Thank you, your feedback has been submitted. Being subject to formal disciplinary proceedings can be unsettling, unnerving and very uncomfortable for an employee. If you’re asked to go to a disciplinary meeting, you have the right to be accompanied by: You don't usually have a right to bring anyone else. Citizens Advice is an operating name of the National Association of Citizens Advice Bureaux. The Claimant sought to be represented by his legal representative at the internal disciplinary hearings. Is there anything wrong with this page? Employee Representation at Disciplinary Hearings | Labour Guide. An employee can request that a family member be present; you can choose whether or not to allow this, unless explicitly stated in their employment contract. The legal position is the same whether the representative is a trade union official or a work colleague. Ensure everything is confirmed in writing. A trade union official can also be a co-worker, but this will rarely be the case for SMEs. There is no reason why you cannot engage the services of a … You should receive a letter from your employer confirming … The referral included, among other things, a dispute of procedurally unfair dismissal on the basis that the applicant was denied permission to be represented at the disciplinary hearing by an official from the trade union, … This right is set out in section 10 of the Employment Relations Act 1999. If you win, the tribunal can give you compensation of up to 2 weeks' pay. This right is referred to in the ACAS Code but is also found in sections 10 to 15 … You can find out more or opt-out from some cookies. If your employer refuses a reasonable request to be accompanied by a colleague, trade union representative or official, you should point out that you have a legal right to be accompanied. Under statute, yes, in certain circumstances. We use cookies to improve your experience of our website. Can an employer refuse to reschedule a disciplinary hearing if the employee’s chosen trade union representative is unavailable? You don’t need to be a member of a trade union. Claiming compensation for a personal injury, Help for victims of rape and sexual violence, Keeping your family in the UK after Brexit, Getting a visa for your spouse or partner, Discrimination in health and care services. In certain special circumstances employees are entitled to be represented at disciplinary hearings by external people such as trade union officials and legal experts. Strictly speaking, there is no legal obligation on the employer to allow the doctor to be accompanied at a disciplinary hearing by someone who does not meet the statutory definition. a trade union representative a trade union official If a colleague cannot go with you and you’re not in the union you can ask to bring a family member or a Citizens Advice worker. Employees have the right to be accompanied at a disciplinary or grievance hearing. NHS Choices - Information on hospitals, conditions and treatments. Most HR professionals are aware that Schedule 8 of the Labour Relations Act (LRA) provides that the employee should be allowed the assistance of a trade union representative or fellow employee. The question as to how far a Union, its officials and representatives can go to protest or protect the interests of its members, which is generally called organisational rights and the right to strike, and as enshrined in the Constitution and the Labour Relations Act, (LRA) are sometimes confused with common acts of misconduct. You can ask your employer if someone else can accompany you, but they don't have to agree to this. If they do you have the legal right to be accompanied by a trade union representative or a work colleague. Please read our data protection and privacy policy before continuing using our website. What does it mean to have power of attorney? As we have mentioned, one element of a fair disciplinary hearing includes allowing an employee to be accompanied by a trade union representative or a fellow worker. Advice for people affected by child abuse. Schedule 8 of the Labour Relations Act 66 of 1995 [LRA] provides that an employee is entitled to the assistance of a trade union representative or a fellow employee.. Who is a trade union representative? (Paragraph 16, ACAS Code of Practice on Disciplinary & Grievance Procedures) ANSWER. For example, in the case of Talon Engineering Ltd v Smith, the Employment Appeal Tribunal found that an employee, Mrs Smith, was unfairly dismissed when her employer refused to postpone a disciplinary hearing for 11 days so she could be accompanied by her chosen union representative who was unavailable until then. You should also check your contract and your employer's procedure on disciplinary meetings, as these say who you're allowed to bring with you. This will also allow the employer to show that the employee received a fair process. The School refused. However, employers should be prepared to be flexible. A trade union ‘official’ has a particular 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. The Acas Guide on Discipline and Grievances at Work suggests that where possible the employer should allow a companion, including a union representative, to have a say in the date and time of a hearing. Therefore, when it comes to a disciplinary issue, employers who don’t recognise Trade Unions should still allow the Union rep in, as this will aid in avoiding any breach of the employee’s rights. Discipline a Union Employee Key Points. Your employer only has to allow certain people to accompany you. 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Your employer has to make reasonable adjustments to accommodate your disability. They can choose to be accompanied by a co-worker or a union representative. In the case of NUMSA obo Thomas vs Murray and Roberts Alucast (2008, 2 BALR 134) the arbitrator found that the fraud-based disciplinary matter was not legally complex and therefore rejected the trade union’s claim that the employee was entitled to be represented by an external trade union official instead of by a shop steward. If your employer still refuses, you can make a claim to an employment tribunal. This duty requires that the union act fairly, impartially, and without ill will or discrimination when pursuing a worker’s grievance or when negotiating a new contract with the employer. You can bring someone with you to a disciplinary meeting. It could be a reasonable adjustment for your employer to allow someone else to accompany you, such as your carer. This is because the range of activities in which a trade union official can participate on behalf of the union is much wider than for an ordinary member. Registered number 01436945 England Registered office: Citizens Advice, 3rd Floor North, 200 Aldersgate, London, EC1A 4HD, Preparing for a disciplinary or dismissal meeting, Who can accompany you to a disciplinary meeting. There’s a limit on how much a week's pay can be - this is currently £538. The ACAS Code of Practice describes the role of the union representative being to: “… address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing”. The person who comes with you is called your ‘companion’. Despite having an "at-will" workforce, the majority of collective bargaining agreements prohibit an employer from disciplining at-will employees unless they can show "just cause." Let us know, Copyright ©2021 Citizens Advice. A union repre… They employee can seek outside representation from a trade union, but the official must be an officer or an elected representative. The union doesn't have to be recognised by your employer. It’s a good idea for your companion to be someone calm, who will take good notes. It's best to do it in writing so that you have a record that the disciplinary or dismissal procedure has been followed. Read what we're saying about a range of issues. We get asked HR related questions every day and each week we will be sharing our top question of the week that we have been asked here at The HR Booth. When contemplating disciplinary action, you should begin by determining whether or not the person is a trade union official. You don’t have the right to be accompanied to either: Even though you don’t have a legal right to be accompanied, you can ask your employer to let you bring someone with you - but they don’t have to agree to it. In Eleftheriou v Arriva London North Ltd [2014], the employment tribunal said it was a breach of the right to be accompanied for an employer to refuse to allow a trade union representative to act as a companion in any of its disciplinary or grievance hearings. Trade unions: representing workers at disciplinary and grievance hearing Employees and other workers have the right to be accompanied at a disciplinary or grievance hearing. This ensures a harmonious and productive relationship in the workplace, where all parties know where they stand. Please tell us more about why our advice didn't help. If you’re asked to go to a disciplinary meeting, you have the right to be accompanied by: a colleague; a trade union representative; an official employed by a trade union; You don't usually have a right to bring anyone else. a workplace trade union representative who's certified or trained in acting as a companion; an official employed by a trade union; ... For more details on holding disciplinary hearings, you can use Discipline and grievances at work: the Acas guide (PDF, 841KB, 79 pages). 66 of 1995 – LRA) In terms of Section 14 of the LRA trade union representatives (shop stewards) have the right to carry out the following functions in the workplace. Often, the union representative, will be a workplace representative who is also a co-worker. A trade union “official” includes officers of the union as well as appointed representatives of union members. The company did in fact recognise another trade union, but the employee was not a member of that union. The Trade Union officials are normally very balanced and objective, and providing you follow our guidance in relation the meeting there is nothing to be concerned about. You can ask an official from any trade union to come with you. For example, in the case of Molope vs Mbha and others (2005, 3 BLLR 267) the Labour Court found that employees are entitled to be represented by a colleague, lawyer or union official. In larger organisations, often, the union representative will be a workplace representative who is also a co-worker. Under South African labour law legislation, an employee has a fundamental right to be represented … What role does a Trade Union Representative have at a disciplinary investigation? This delicate balance becomes slightly complicated when Trade Unions, purporting to act in the interest of workers, get involved. 1) To assist and represent employees at grievance and disciplinary proceedings, at their request. In the case of NUMSA obo Thomas vs Murray and Roberts Alucast (2008, 2 BALR 134) the arbitrator found that the fraud-based disciplinary matter was not legally complex and therefore rejected the trade union’s claim that the employee was entitled to be represented by an external trade union official instead of by a shop steward. Advice can vary depending on where you live. The rights of the shop stewards (The Labour Relations Act, No. Find out how to complain about your doctor or health visitor. Registered charity number 279057 VAT number 726 0202 76 Company limited by guarantee. In the cases of SMEs, where in most cases there is no union representation, the trade union representative will be an official outside of the company. You should suggest a date and time that’s ‘reasonable’, which means it’s both: If you make a reasonable suggestion your employer has to agree to it. In this week’s question of the week, Alistair explains what role Trade Union Representatives have at disciplinary investigations. At a disciplinary hearing the expertise, support and shrewdness of a knowledgeable trade union rep can be invaluable. The representative is permitted to address the disciplinary hearing to: put the worker's case; sum up that case; and/or respond on the worker's behalf to any view expressed at the hearing. An example of this is the potential involvement of trade unions in a disciplinary hearing. Is an employee entitled to representation at a disciplinary hearing? Even if you don’t recognise a trade union, if the employee is a member of the trade union, they have the right to be accompanied by the TU 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 … All rights reserved. You can ask for the hearing to be rearranged. You can ask your employer if someone else can accompany you, but they don't have to agree to this. The Supreme Court case of National Labor Relations Board v.Weingarten, decided in 1975, established this basic entitlement and the procedures for when and how union reps may participate in interviews. Think hard about whether you have any witnesses to the alleged events. Employees have the right to be accompanied at a disciplinary or grievance hearing. If so, you should contact … They can choose to be accompanied by a co-worker or a union representative. In larger organisations, often, the union representative will be a workplace representative who is also a co-worker. If the union representative is unable to attend a reconvened hearing within five working days, the employer is under no obligation to consider adjournment of the hearing. The Trade Union Representative can present and/or sum up your employee’s and say things to support their case. If you are a union member, you have a right to have union representation at any interview or meeting that could lead to disciplinary action against you. 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. You can ask for written confirmation of this from the trade union concerned, and this is normally done at the introduction stage of the meeting. A trade union representative can address a disciplinary hearing, put and sum up the your case, respond to any views expressed at the meeting and confer with you during the meeting (3). You employer isn’t allowed to say who should accompany you - it’s your choice. This is a meeting which can lead to disciplinary action. The hearing: The Chairperson will introduce himself and then ask all the parties present to introduce … The matter was again addressed in SACCAWU obo Abrahams / Markhams [2007] 5 BALR 476 (CCMA), heard on 9th January this year in arbitration at Bethlehem. The employee attempted to attend a reconvened disciplinary hearing with a representative from a trade union that the company did not recognise. The Claimant sought to judicially review the School, alleging that the refusal to permit legal representation at the internal hearings constituted a breach … You must ask your employer. Your employer doesn’t have to let you be accompanied unless you ask to be. 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