Introduction

Representing members in disciplinary and grievance hearings is a fundamental part of the role of a trade union rep. According to the Workplace Employment Relations Study (WERS), it is where most workplace reps spend the majority of their time. This Labour Research Department (LRD) booklet is intended to provide practical advice for union reps who carry out this role.

Advising and representing members on discipline and grievance issues is vital on both an individual and a collective level. At an individual level, what happens in internal disciplinary and grievance meetings generally gives members the best chance of keeping their jobs or having their concerns addressed. Matters are more likely to be resolved for members in the workplace than they are in an employment tribunal. For the small proportion of claims that do succeed — which is a minority — the outcome often remains unsatisfactory. Fewer than 1% of successful unfair dismissal claims result in reinstatement or re-engagement for the member, and when compensation is awarded this is capped at the statutory limit, meaning that they have still suffered actual loss and may still be out of work.

If a member does decide to bring a tribunal claim, the result can be shaped or determined by the way in which the disciplinary or grievance proceedings have been conducted — the arguments put, the evidence collected or challenged, and the decisions taken, for example, whether or not to appeal.

Part of the union rep’s role is to make sure that employers have clear and transparent policies that are followed consistently and fairly. Individual cases will highlight any procedural defects that unions can use to negotiate changes to policies for the benefit of all staff. Fair and effective conflict resolution is as much in the interests of the employer as that of the worker, because management unfairness manifests itself through low morale, increased absence, higher levels of illness, reduced effort, industrial action and the loss of valued staff who may quit their jobs because of it.

At a collective level, discipline and grievance processes are important to unions because the visible reassurance and practical support offered by reps to individual members, supported by the specialist resources of the national union where necessary, sends a strong positive message about the benefits of union membership. This helps to build membership levels in the workplace, strengthening the union voice and making it easier to negotiate effective collective solutions without the need for litigation.

Most trade unions offer their members a legal advice service and any member or rep contemplating taking a legal case should contact their union first. In some unions, tribunal cases will be handled internally at district, regional or even head office level. This booklet does not contain individual legal advice and must not be relied on as such.

The booklet is divided into the following Chapters:

• Chapter 1 sets out the legal status of disciplinary and grievance procedures;

• Chapter 2 outlines best practice on procedure;

• Chapter 3 explains the right to be accompanied and the difference between informal and formal procedures;

• Chapter 4 looks at disciplinary suspension and investigation;

• Chapter 5 considers disciplinary action, including preparation for the hearing, evidence and witnesses;

• Chapter 6 deals with disciplinary sanctions and arguments to put forward in mitigation;

• Chapter 7 describes the grievance process;

• Chapter 8 focuses on organising around grievances and disciplinaries, including the use of collective grievances;

• Chapter 9 explains what reps need to know about mediation;

• Chapter 10 looks at disciplinary and grievances in the context of TUPE transfers;

• Chapter 11 considers employer references following disciplinaries.

The booklet provides relevant examples from tribunal decisions (case law) throughout: see Further Information on page 96 for sources. References are also made to statutory provisions (legislation), which can be found online at www.legislation.gov.uk.