Disciplinaries and Grievances

There are three main reasons for being a member of a trade union. These are -

1. Collective bargaining for better pay, terms and conditions

2. A safer workplace and safer work practices

3. Personal representation from shop stewards and solicitors in relation to disciplinary and grievance procedures

This section concentrates on the role of the steward in disciplinary and grievance proceedings.

Becoming a better rep

This section assumes that you want to get better at representing your members. The following will help -

  • Go on the Unite and TUC courses that are available to you, but start putting that training into practice as soon as you've done stage 1
  • Build up experience by asking to act as a note taker at disciplinary and grievance hearings handled by more experienced reps
  • Get a basic book on employment law. We recommend Employment Law by the Labour Research Department as a good starter
  • Get into the habit of going on to the internet to look for similar cases. Start with Google, then check out a few sites run by magazines for HR advisors such as Personnel Today and sites run by solicitors such as O. H. Parsons. Then take a look at the websites run by the government such as Direct.gov
  • Ask more experienced reps for advice - though make sure that you have permission from the member to discuss their case
  • Talk to your full time officer at the union. The officer may be referred to as a RIO (Regional Industrial Officer)
  • Get into the habit of advising members to go to their Citizens Advice Bureau. They can advise the member of their basic legal rights (something that you should not do as you could get sued if you get it wrong!) and also put the member in touch with various services provided by the local council
  • Set up a meeting for the member with a union solicitor. This will normally involve the member filling in a form which is then sent off to the RIO for authorisation. Ask the member if they mind you attending the meeting, which will allow you to learn a bit about how the legal system is meant to work
  • Set up a meeting for the member with their local MP. At the very least, the MP should be prepared to write to the managing director or CEO of their company to ask for an explanation of their situation. This should result in someone from the top of the company asking a middle manager exactly what is going on, which often helps them to reconsider if they are doing things the right way. Again it will be useful if you can get to sit in on the meeting with the MP, as you will get a better understanding of how things work and build up a relationship with a politician who may help you in the future
  • Most of the rest (including confidence) will only come with practice. We'd suggest that for your first cases you only handle minor offences that are not likely to result in a final warning or dismissal, even if you get it wrong. We would also suggest that you take a more senior rep in with you as a note taker - they can always kick you under the table if you're heading in the wrong direction, after which you can ask for an adjournment so you can chat about things. And if worst comes to worst and you don't win the case, there is always the appeal where a more experienced rep can push for the ruling to be overturned

Rights of the member and their representative

The Employment Relations Act of 1999 (as amended) is the key piece of legislation about the right to be represented - though do read the ACAS Code of Practice on Disciplinaries and Grievances, which while not legally binding can be very significant when an Employment Tribunal decides if a dismissal is fair or unfair. At a formal disciplinary or grievance hearing the rep can speak freely at any time - though they cannot answer questions asked directly to the member. 

Unfortunately ERel 1999 does not recognise the right to be represented at meetings other than a grievance or disciplinary hearing. This means that investigatory meetings, absence interviews and so on are not necessarily covered. Often a company's handbook or policy on disciplinary and grievance procedures will recognise the right to be represented in other meetings, but this is not automatic.

One of the first things that any union should do after gaining recognition is to seek the right to be accompanied by a companion of choice at all meetings that are part of the disciplinary process or that may lead to a warning, whether verbal or written (including reviews of absence and lateness). Also try to get the company to recognise the right to have a note taker present as well as the representive. A few suggestions -

  • Always make a written request to be accompanied to any meeting that may result in a warning, including investigations
  • If your request is refused - write to the manager who made the decision and ask "Why?"
  • If the member speaks English as a second language, refer to this in your letter or e-mail. Refusal to allow a companion under these circumstances might (but not definitely) be accepted by a tribunal as a act of discrimination.
  • At any investigatory meeting - ask (or put in writing) if it is a formal meeting, the content of which might be presented in a diciplinary hearing. If the answer is "yes," then it might be possible to argue that this was just a preliminary stage of the hearing itself. If the answer is "no" and the material ends up being used, you could ask that the material be excluded from consideration, as it was collected under false pretences.

Principles of arguing your member's case

Each case will be different, but there are a few rules that may help you -

  1. If the facts of the case are in your favour (and you have proof) then concentrate on the facts
  2. If the facts of the case are not in your favour or you cannot prove them, then concentrate on procedural errors
  3. If neither of the above applies, try thumping the table and complain about the appalling way that this loyal employee has been treated

This is obviously a simplified version of how to approach a case, but it's a good starting point. Any disciplinary (or grievance) might be part of a chain that ends up at an Employment Tribunal - so always have it at the back of your mind that if you don't succed here that you may need to convince an ET at some other point in time. And always remember the saying - Tribunals hate people, but they love documents.

Facts

Anything that you claim to be true is not a fact until you have proved it to be true. To do this you will probably need -

  • Documents and/or
  • Witnesses
  • Other types of evidence

Documents are usually better, as witnesses have an annoying habit of not being available when you need them - so if you can - try to get a statement out of them (many witnesses will be reluctant to do this as they may have a fear of being victimised, their spelling is bad or they're just a bit lazy). If you have to - it might be worthwhile taking a verbal statement from a witness and writing it out or typing it up for them to sign. Try to create a "paper trail" - i.e. a series of e-mails or letters between yourself and management that can be used later as evidence. The sort of things you might want to consider include -

  • Requests for risk assessments, training records, accident reports, policies, written instructions, local agreements with the union, log books, staffing allocation sheets, Occupation Health referrals
  • Requests for notes from meetings (especially disciplinaries, investigations etc.)

Don't ask for ridiculous numbers of documents - just for those that are relevant. Management will often refuse, or just not respond. Sometimes they will claim that they cannot provide the document because of the Data Protection Act (though frequently it's actually because they can't be bothered to look for the document or can't find it). A tribunal may (or may not) consider that failure to provide documents made it impossible for the member to present their case.

Procedures

As a general rule, something should be considered to be procedurally unfair if there is one major failure or a series of minor failures to follow an agreed fair process. Convincing a tribunal that a dismissal has been unfair is a lot easier if you can show that management did not follow their own disciplinary policy. A sloppy dismissal process is a gift to anyone prepared to go to court. If an employer does not follow procedure when carrying out a disciplinary, it doesn't matter (in theory at least) if they do everything right at the appeal and show that the employee would still have been fired because the dismissal was unfair. The House of Lords test case for this was Polkey - v - A. E. Drayton Services Ltd. (1988 ICR 142, Law Reports IRLR 503 1988) which is possibly the most important decision relating to dismissal cases. See www.emplaw.co.uk/content/index

Unfortunately tribunals do not always consider the management errors that often happen in disciplinaries to be serious enough to prevent the employee from presenting their case, so try to give them as many opportunities to get it wrong as possible by asking for relevant documents and so on.

Table thumping, counter-allegations and tactical grievances

Once upon a time in the days before Margaret Thatcher, it was not particularly unusual that if a union member was suspended or disciplined in any way that there would be an instant walk out of the workforce. The table thumping was a sign that the workforce would down tools if the management decision went against the member. Sadly those days are long gone and the union and any participating members can be sued for any type of unofficial industrial action. As the recent injunctions against British Airways demonstrate - judges are not typically sympathetic to strikers and unions need to be meticulous in their procedures to avoid having their strikes declared illegal.

Having said that, a union will normally establish a baseline of acceptable behaviour by management, which once crossed will mean that the relationship will become extremely frosty and negotiations difficult. Table thumping is sometimes seen as a technique of last resort and tends to be ignored if it is regularly used. But if a rep who has never raised their voice before gets suddenly angry, it is not unknown that a manager can lose confidence that they have done everything right or that there may be consequences. 

A disciplinary can sometimes be stopped in its tracks by issuing a counter grievance about management failures to follow agreed or written procedures that are connected with the disciplinary. The ACAS code says that sometimes it may be appropriate to hear the grievance before the disciplinary. It would probably not be unfair to say that management rarely enjoy holding grievances against other managers and often do a rather poor job of following company policies, which can sometimes be used to show that an employee has been treated in a different (unfair) way if the case ever ends up at tribunal.

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