Employer saying I don't have right to Union Representative at Disciplinary Hearing

[TomWoods]

Hi all,

I'm new here and hope someone can help me. I received a letter out of the blue from HR asking me to attend a disciplinary hearing. The initial letter stated:

You have the right to be accompanied at the hearing by a fellow worker or trade union official if you so wish.

But then the same person said in an email:

For all disciplinary meetings, employees are entitled to be accompanied either by a fellow colleague or if they happened to be a member of a union (and that union was affiliated to the company) then you could bring a representative.

I then queried which unions are affliated with the company and they said:

We are not affiliated to and therefore do not recognise any unions. You are welcome to bring a colleague to the meeting.

After that I asked about colleagues attending with me and asked for a delay to the hearing date because most of my colleagues are working abroad on assignment. The delayed it until next tuesday and issued a new letter which stated:

You retain the right to be accompanied at the hearing by a fellow worker of your choice.

Anyway I started reading up on this and found various websites stating that I absolutely do have the right to be bring along a union representative, e.g. Abbey Legal Protection website states:

The statutory provisions that confer on workers the right to be accompanied by a trade union

official, a trade union representative or a fellow employee of their choice do not restrict this to

officials of trade unions that the employer recognises. This means that the worker can be

accompanied by an official of any trade union, regardless of whether you recognise them or whether the worker is even a union member.

The ACAS website also states similar. It seems pretty clear cut to me but I know that there can often be gotchas and loopholes in the law that employers exploit. Can anyone with experience let me know who's really right? I work in the IT Service industry and am not a member of a union but I would want to join one because I believe that I am being victimised at work. Can anyone suggest a union and how I could get union representation in a reasonable timeframe. The hearing will be in Bracknell (Nr. London). Based on what people say here and reading further I am going to make a decision and probably will tell them that I will not attend due to their misrepresentation of the law and ask for a further extension.

I obviously really appreciate any help. Maybe I will outline some more details later about their allegations and about the grievance I may raise about victimisation. Oh by the way, this is not a gross misconduct case. In fact it's pretty trivial (my immediate managers and co-workers don't think I did anything wrong), but I am worried that they are just looking for any excuse to get rid of me eventually.

Tom

[Harmonica]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

You do have the right to be accompanied by a union rep at a disciplinary hearing. There is no grey area here. It is a statutory right. However, as this issue began before you joined a union you may have difficulty in getting a union to represent you on this specific matter as you joined them after it began.

I have to be honest, good unions are rare these days. Most union reps are nice people. But it should be remembered that they are almost all merely volunteers who try to do their best for people but for the most part they are far from professional advocates. I have met some great ones, but they are few and far between it must be said. The majority of them are well meaning amateurs who can sometimes be more of a hindrance than a help as they don't always know what they're talking about. I'm not saying don't give the unions a try. I'm just saying don't expect too much.

Are you an IT worker in the public sector or the private sector? A number of IT workers I know are in the communication workers union although I don't know how good they are.

[Tools]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

As you work in the IT sector I would recommend the UNITE Union, http://www.unitetheunion.org/ it costs around £14/month for all singing all dancing membership and has a wide range of benefits.

You are correct in your research and assumptions, you are 100% entitled to be accompanied by a Union Rep. Make the company aware of this and insist that any hearing is delayed until you have taken advice.

[Harmonica]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

I must also tell you though, none of this matters if you have been working in your current job for less than two years. They don't even need to hold a disciplinary hearing. You cannot claim unfair dismissal unless you have been working there for two years or more.

Your complaint in relation to being victimised will only be unlawful if it is because of a protected characteristic such a race, age, gender, sexuality, religious beliefs etc.

[TomWoods]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

Thanks all for the advice. Hi Harmonica, I have worked there for nearly 4 years so that should be ok. From what I've read victimisation is the equivalent of discrimination but for people who don't have a protected characteristic. E.g. the Citizen's Advice Bureau says:

The difference is that while discriminatory actions are possibly based on, for example, age, disability, race, religion, sex or sexuality, victimisation is unfair treatment because of other issues. Complaining, insisting on legal rights at work or doing anything that is legal and justified within the law that is followed by unfair treatment can be victimisation. If you have supported a colleague in a discrimination complaint and are treated unfairly this also amounts to victimisation.

[TomWoods]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

I am also a lapsed member of Unite so maybe they are more likely to help me. I left them when I left a company affiliated with them due to wrongly believing that they had no use in my current company.

[cupidstunt]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

The difference is that while discriminatory actions are possibly based on, for example, age, disability, race, religion, sex or sexuality, victimisation is unfair treatment because of other issues. Complaining, insisting on legal rights at work or doing anything that is legal and justified within the law that is followed by unfair treatment can be victimisation. If you have supported a colleague in a discrimination complaint and are treated unfairly this also amounts to victimisation.[/QUOTE]

Is this what happened then? you don't give details.

[TomWoods]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

The difference is that while discriminatory actions are possibly based on, for example, age, disability, race, religion, sex or sexuality, victimisation is unfair treatment because of other issues. Complaining, insisting on legal rights at work or doing anything that is legal and justified within the law that is followed by unfair treatment can be victimisation. If you have supported a colleague in a discrimination complaint and are treated unfairly this also amounts to victimisation.

Is this what happened then? you don't give details.[/QUOTE]

Hi, yes I have complained about various things. It's a long story spanning nearly 3 years. I will try to summarise.

I work for a large IT Software and Services company and for the time period in question have been working for a client in Denmark. To begin with I was working in Denmark(commuting every week) and we were a small team of about 5 people. I was brought on board to take charge of integration and had wide management responsibility over everything related to integration with the customer's system including agreeing processes with the customer, managing deliveries, giving estimates, timelines, managing software engineering team as well as doing design work. Then about 1.5 years ago the management team above me in my company changed and it seems like they did a top-down reorganisation and put different people they wanted (all newer on the project than me) into different roles that they wanted responsible for a lot of the things that I was responsible for. However they didn't include me in this reoganisation at all or even consult me. It's also obvious that they didn't tell the customer because the customer still expected me to get things done but as the rug had been pulled out from under me I couldn't deliver what they wanted anymore. It affected my relationship with the customer because I kept having to tell them 'I don't think that I am the person you need to speak to anymore' etc. It was all very confusing and to this day I don't know what my company expects from me. It has caused loads of problems because the new people who now have the management responsibility which I used to have don't fully understand what needs to be done so I see lots of problems happening but too late because I am not in the lines of communication anymore which I would need to be in to warn them and to manage the things that need doing properly. I still feel responsible because I am still the only person who has a lot of the knowledge and overall the customer still sees me as responsible for the Integration part of the project. There is a complete disconnect going on and its caused me a huge amount of stress. I've complained about it several times informally but get an extremely defensive reaction. I get the impression that the higher management are extremely touchy and don't like even suggestions from me on how to do things better because that implies they made some mistakes in the past.

I was also involved in an incident at the end of 2012 where I was attacked and ended up held in custody for 5 days in Copenhagen(no charges came). I was off work for 5 days sick due to acute stress. They insisted that I have a medical evaluation and that came back recommending that I shouldn't travel for a few weeks. I also had an interview with their HR director and after the meeting I received an email with a very conspiratorial tone from the HR director to my senior management (I was accidentely cc'd) saying a lot of completely unsubstantiated stuff and basically slurs on my character. I complained about it informally. The HR director basically begged me to forgive her and said she was having a bad day blah blah. Because I am not the type of person to get litigious and prefered to try and preserve a good relationship with my company I just said 'forget about it'.

However I was then banned from regularly travelling to Copenhagen until August/September. I said that it was better for me to travel and that I needed to be their to do my job properly and that I was becoming isolated. In August I received an email from the Project Manager after complaining that I was not included in the go-live plans which I especially wanted to be involved in because it would be very good experience and I was told that they could not because they were still under instructions from the senior management which restricted my travel. They had no justification for this so I queried it and they said it was all a mistake. The restriction was lifted but I still found that this had all further limited my career.

Then there were a few other incidents about e.g. my annual review scores were changed behind my back after I agreed them with my line manager. I also complained informally about favoritism especially regarding a certain fairly lower ranked member of the team who they treated to unprecedented access to the higher management, inside information and gave responsibilities which were really nothing to do with his job (including ones that I was previously responsible for and they hadn't even told me that I was no longer). They have also recently repeatedly promoted this individual.

Now the disciplinary they are bringing against me is for sending inappropriate emails to the customer (rude and derisive). The emails themselves are relatively mundane work related ones, possibly a bit informal but the person I was speaking to (customer) I have worked with for 3 years and have a good relationship with. He (the recipient) has said that there was nothing wrong with the emails at all and that he appreciated frank discussions. Our own company's PM responsible for this customer project has read them twice in detail and said that he can't see anything wrong with them, as have several other members of the team. One of my main points related to my Disciplinary hearing is that there a various other people from my company who the customer has definitely complained about for things much worse, including things that could easily be described as gross misconduct such as one person turning up to work at the customer's office drunk after being on an all night bender and other who swore at and was abusive to them. Another who was repeatedly rude and aggressive to them. I highly doubt that any of these complaints went very far because of who the people involved are (one if the repeatedly promoted person I mentioned). They probably fizzled out or at most the person got a bit of a talking to. If I am correct then I think that this is a clear sign of unfair treatment and victimisation. I really need to find out details of these other complaints - who made them, how (email, verbal), and which route they took into my company's management. I am stuck between a rock and a hard place because I highly doubt that my company will share this information and if I approach the customer (who may well share it), I will be accused of damaging my company's relationship with the customer (which it probably would but what am I supposed to do?). Do you think that I would be justified in approaching the customer about this?

I would also like to know anyone's thoughts on this related to how strong a case I may have. I have numerous emails as hard evidence related to many aspects of it. I know that a lot of this is just down to bad management and accidents but there is definitely a malicious aspect to it to. Also, just because a lot of it is bad management I still believe that it amounts to victimisation or bullying

[cupidstunt]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

I will have to read this a few more times, as I can see your point, I'm having trouble seeing how you could put this to an ET.

It's such a difficult process, getting it into the ET speak.

You need written evidence of all your complaints.

Also the other complaints from the customer would be confidental, so they can say there were different circumstances to the case.

[cupidstunt]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

Still reading.......so far I'm surprised your company hasn't already lost this customer.

what stage has the discipline got to, have you been interviewed yet, as part of the fact finding.

I think you will need a witness statement from the customer, stating that he doesn't think your message was rude. might be best to ask your companies opinion first though.

On the other hand sometimes all that matters is if your employer could reasonably believe it was rude and would the judge in an ET think it was rude.

[Tools]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

Before you consider the "bullying" route I suggest you read this http://www.acas.org.uk/index.aspx?articleid=4235

I would be more inclined to approach it from a "breakdown of trust and confidence" angle.

[TomWoods]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

Still reading.......so far I'm surprised your company hasn't already lost this customer.

what stage has the discipline got to, have you been interviewed yet, as part of the fact finding.

I think you will need a witness statement from the customer, stating that he doesn't think your message was rude. might be best to ask your companies opinion first though.

On the other hand sometimes all that matters is if your employer could reasonably believe it was rude and would the judge in an ET think it was rude.

Hi, I've not been interviewed as part of any fact finding, I was just asked to attend a formal hearing. The first I heard about it was on monday and they wanted the hearing the day after. They said that I couldn't take a union representative, only a colleague. So I asked for an extension to find a colleague because they are mostly all working in Denmark. They granted an extension until next tuesday (day after tomorrow). I was then away in Denmark working long hours from last tuesday until yesterday (saturday). When I got back home I started to read up on the rules and discovered that they are not allowed to deny me the right to bring a union rep. So I just emailed them today declining their invitation until such time as they send a new invitation confirming that I can bring a union rep. and allow enough time for me to reasonably find one.

I have just rejoined Unite. I will ring them tomorrow and see if they will help considering I am a past member, or could offer them some kind of donation (years membership fee or something). If they won't help because I only just rejoined I have some contacts that might bear fruit but it seems fairly unlikely. As it happens even with the extension granted it was not possible to get a colleague to attend as they are all in Denmark or on holiday. The guy who said he would come if he wasn't on holiday may be available on the new date at least. I have a feeling they are not going to take kindly to me not attending next tuesday but I feel well within my rights as I understand them.

[TomWoods]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

Before you consider the "bullying" route I suggest you read this http://www.acas.org.uk/index.aspx?articleid=4235

I would be more inclined to approach it from a "breakdown of trust and confidence" angle.

What about 'victimisation' which I mentioned earlier. The CAB explanation of it says that its like discrimination but applies to everyone, not just people with protected characteristics.

I suppose I do have a protected characteristic - illness. I started a treatment for Generalised Anxiety Disorder a few months ago. I link it to all this. However I doubt it would be useful because I haven't told work about it and they will just say I should have. Would it be useful to inform them now? I didn't originally because they already argued in the past that I shouldn't be able to travel regularly due to thinking I am still stressed from after I was attacked. However it was actually their exclusion and travel ban which caused the continued stress - the stress from the attack and police incident was just acute stress.

[Harmonica]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

Your GAD would be unlikely to be a protected characteristic as it is not something you have been treated for long term. Also if your employer doesn't know about it then they cannot have discriminated against you for it. Stress is not a disability.

You are being bullied but although this is disgusting behaviour it is not unlawful. Victimisation is something different and is against the law. The law states that you can't be victimised unless it is for a protected characteristic or for seeking to assert your statutory rights to a healthy and safe working environment.

Are you being victimised for seeking to raise health and safety concerns?

I don't suppose you're gay perhaps? If so, is it a factor?

[TomWoods]

Re: Employer saying I don't have right to Union Representative at Disciplinary Hearin

Your GAD would be unlikely to be a protected characteristic as it is not something you have been treated for long term. Also if your employer doesn't know about it then they cannot have discriminated against you for it. Stress is not a disability.

You are being bullied but although this is disgusting behaviour it is not unlawful. Victimisation is something different and is against the law. The law states that you can't be victimised unless it is for a protected characteristic or for seeking to assert your statutory rights to a healthy and safe working environment.

Are you being victimised for seeking to raise health and safety concerns?

I don't suppose you're gay perhaps? If so, is it a factor?

So is there really no point in complaining, e.g. that they treated other employees completely differently who were complained about by the client?