Hi Danielle

Maybe I led a sheltered life, but it had it’s moments and almost entirely experiences with TU companions were I have to say generally positive, despite the initial apprehensions about how they might turn out. None at all were seriously disruptive or anything and only one or two a little unpleasant at times. Generally I think one reaps what one sows and openness and goodwill gets reciprocated.

You may not strictly-legally be obliged to allow a companion in these particular circumstances- not enough detail fully to determine, but in my experience allowing one anyway on a conncessionary basis is usually helpful for all involved

Agree with David - my interactions with union reps under these circumstances have been broadly positive. In some cases, they have really helped with a rational and logical position, when the employee in question has understandably become stuck in an emotional position. Of course they are acting in the best interest of their union member rather than the company, but that doesn't mean that they will be rude or antagonistic - they are professionals too!

If you don't recognize a union then presumably, whilst the person accompanying the employee is a TU rep, they are also an employee, so you treat them exactly the same as any other employee representative.

If they are a regional officer, you say "sorry, we don't recognize your union and so you aren't permitted to accompany them in this meeting".

And can we get some clarity on whether this is an employee or an ex-employee? If it's a grievance and they no longer work for you, why are you having a meeting at all? The objective of a grievance is to learn and ensure that the issues the employee was facing don't continue. If they don't work for you anymore then... well, they de facto aren't continuing.

Of course, there may still be issues internally to address as a consequence of the grievance, but that's none of the ex-employee's beeswax. Because they don't work for you anymore.

However, to address the question at face value; generally, TU reps fall into two categories:

The ones who are only interested in a fight and who will use the employee as a proxy for their own political grievances.

The ones who are just trying to make sure that the employee's interests are served.

Obviously, those of the first kind will insist they are of the second kind. And in either case they may be more or less well informed about the law and process. One of the best shop stewards I ever worked with has a CIPD Level 7 qualification and knows the law, the policy and good practice upside down and inside out.

But in either case, they have no right to actually address the hearing except so far as they are speaking for their colleagu, and they are there to advise and guide their colleague. So if they start getting onto a soap box, the chair is perfectly entitled to shut them down.

Assuming that the process has broadly been fair and transparent, the most likely course of attack for any representative seeking an advantage is to focus on any minute deviation from the wording of the policy and to argue that this undermines the whole process and therefore renders it unfair. Uninformed panel members can be persuaded by such arguments. Your job is to inoculate them in advance by reminding them that the question they must ask is whether, had the policy been adhered to to the letter, it would actually have changed their opinion of the facts. If not, then it is irrelevant.

A union's Ultimate Power - which applies even if you don't recognize the union - is that they offer free legal support to members, so a member is better able to pursue a case to tribunal. However, that free legal support will only apply if the union believes it has a better than evens chance of success. They will not pursue hopeless cases as an act of vengeance because that is a waste of their members' fees.

Hi Danielle

Would echo David's very good points.

On a practical level I would say be prepared for them to be confrontational, and understand that they will know their stuff in terms of procedures, but this is not a bad thing, they are there to look out for their TU member.

A grievance itself is never a pleasant experience, there is a conflict in existence, so the employee having a TU rep accompanying them rather than a colleague (or ex-colleague in this case) doesn't really make a difference to the pleasantness of the meeting.

In my experience, TU Reps are generally pragmatic. They will support and defend their member (which they are paid to do), but they can also see when their member is completely in the wrong (which you can usually see by the level of argument made by the TU rep during the meeting).

I've had quite feisty discussions with a TU rep during disciplinary/grievance meetings, but once it's concluded, we can make quite pleasant small talk afterwards - they do have quite a lot of shared experiences with HR professionals after all (and I can only agree with David's comments on goodwill being reciprocated)

So be well prepared, but don't be intimidated - and remember at the end of the day, getting exposure to TUs is valuable experience for any HR professional

Good luck

Joe

Thank you so much for all your kind words, it’s a relief to read not all experiences with TU’s are negative. I agree a grievance is never something we would like to have come our way (it means someone feels they’ve been done wrong by in some way). I apologise that the hows, what’s and whys are more than a little vague but I can’t add more at present.

Thank you all so much again. I always find valuable information and support on this forum .

In reply to Danielle:

Thank you for being a member of our Community, Danielle :)

In reply to Robey:

Hi Robey

If I understand your assertion (above) correctly, you seemed to be observing that a non-employee officer of an unrecognized trade union isn't permitted to act as a companion. I'm sure that they indeed are so permitted, provided that the officer's own trade union has certified them generally to act as a companion: whether or not the particular trade union is recognised in that particular workplace doesn't matter.

I thought I was going mad then, thank you David, a TU rep whether employed by same company or not can accompany. Suggest you ask for evidence that they are a TU rep and that said employee is fully paid member. Saying that, I've only ever had good experiences with TU reps. Keep calm, be respectful and they can't be anything else but pleasant back. Good luck with the matter

In reply to David:

I stand corrected, and for chapter and verse from the Employment Relations Act 1999:

(3) A person is within this subsection if he is—

(a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992,

(b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or

(c) another of the employer’s workers.

Nothing like being confidently wrong to invite learning!

In reply to Robey:

Hi Robey

Glad it’s got clarified - lifelong learning in action!

Thank you all again for your help. Meeting has been held and I’m glad to say the pre-conceptions I’d been given of TU reps are not true. Thoroughly nice chap, on the EE’s side of course.

Perhaps a dim question, if the outcome is very plainly hitting me in the face, should I still follow a full investigation? There is evidence I can gather but it won’t make a difference to the outcome (ultimately process not followed).

Also, payroll, until the investigation is completed I have processed days worked PILON on the companies side (EE notice is longer) a deduction for over taken holiday. Is this safe to process? EE arguing should be paid as normal. If I find in her favour more would be due in terms of notice pay

In reply to Danielle:

Hi Danielle,

I don't think we've got enough information here to help. Has your (ex) employee left because of the grievance matter - but if it's resolved, would want to stay? I'm unclear if this is a disciplinary or grievance issue from the way it's written.

If it's a grievance they've raised, and which they've resigned over - if you wish to accept their withdrawal of resignation, then you might need to unpick your payroll workings. Otherwise, it sounds as if you've processed a resignation in line with her contract.

Re the investigation, I think the test case was a BHS one (Birtchill?), but it basically says that investigation should be enough to be clear about the facts - so as long as you are sure you've got all the relevant information, you can stop digging.

I hope that helps.

Nina

In reply to Danielle:

What was the end outcome from the grievance?

In reply to Nina Waters:

Hi,

I have a case whereby an Ex-employee has left the business (under 2 years service) was within their extended probationary period for performance and professional conduct issues and has now gone via a trade union to submit a grievance for unfair dismissal related to equality act and disability claims. I have never dealt with TU before it would be good to get some advice on how to approach this or what to expect?

In reply to Nala:

First, an ex-employee cannot submit a grievance and their union will know this. A grievance is a process by which an employee raises an issue and, through dialogue, the employer resolves this grievance. But if someone has left the business, it is impossible to resolve a grievance.

If they believe they were unfairly dismissed on the grounds of disability discrimination, they should normally take that to Acas for Early Conciliation and, from there, if no conciliation is reached, to employment tribunal. So it sounds like they're going via their union in the hope of agreeing a financial settlement instead. It is worth going back to clarify this with them:

"Given that, as Y is no longer an employee of X, and it is therefore not possible to resolve an employee grievance, can you clarify what resolution or settlement you are seeking?"

You should also check the time lines. How long is it since the employee was dismissed? More than three months and a day and they're out of luck and, again, the union will know this.

Finally, check your audit trail on the dismissal. Did you keep good, clear records of the employee's probation, extensions, review meetings and dismissal? Were they clear that the employee's performance was not up to expectations? Did the employee raise a concern regarding their disability and were measures explored for reasonable adjustments? If you ticked all of the right boxes along the way, you should have no concerns.

If, however, the records were opaque, the manager ignored requests for reasonable adjustments and/or the dismissal was executed without any written account of the reasoning or supporting evidence, you may prefer to quietly agree a post hoc settlement with the assistance of your solicitor.

By and large, unions don't waste their time on cases with no hope of success or where the employee is obviously chancing their arm, so if they've taken up the case it's worth testing their resolve and whether their member has provided them with an honest account of events. If, having made some testing exchanges, the union stands firm with their member, there's a good chance that they think they've got at least a 50/50 chance to winning this at tribunal so you should at the very least give serious examination to your processes before stepping up to get butchered in court.