ADVISING MEMBERS: RIGHTS AT WORK
As important as arguing for collective improvements in your members' terms and conditions is your role in resolving individual members' issues. Individual problems that keep coming up are a sign of an underlying problem at the workplace that you can build a campaign on.
Members will come to you for advice about problems they face at work. It is important that you support your members and do your best to give them the best advice you can.
A good starting point is to know the basic rights at work people have and the standard advice GMB gives to its members in other workplaces. During your training you will be given books and other materials for you to keep and build up your own personal reference library.
There is also a 'Most Asked Questions' guide which sets out the advice you should give members for the most common problems that arise at work which is available on request from your Officer.
Other issues will come up and you are not expected to have the answer to every query straightaway. If you don't know the answer to any question you are asked, tell the member you don't know but will find out and get back to them. Then call your Branch Secretary or talk to other GMB Representatives where you work before going back to the member with your advice.
THE LAW ON REPRESENTING INDIVIDUAL MEMBERS
The law now provides minimum rights to all workers to have proper representation under an agreed procedure when facing a disciplinary hearing or lodging a grievance.
RIGHT TO BE ACCOMPANIED FOR ALL WORKERS
This is covered in section 10 of the 1999 Employment Rights Act and gives all workers the right to be accompanied to any disciplinary or grievance hearing by a union representative or companion: This law does not mean GMB is required by law to represent any worker who asks us for help.
THE LAW ON DISCIPLINARY AND GRIEVANCE PROCEDURES
It is a fundamental principle of trade unionism that everyone should have the same rights at work and faces the same sanctions, with the employer following the same laid down procedure.
It is impossible to have a fair system if the rules are not written down somewhere and understood. GMB has argued for decades that it is essential that written procedures exist for individual problems; otherwise management will be free to operate their own unaccountable system of shop floor justice.
The 2002 Employment Act ensures every employer has to have a written procedure and to tell their workforce what it is.
As part of the 2002 Employment Act, ACAS has produced a minimum procedure that all employers must adopt. GMB policy is to make sure that we improve on this procedure in workplaces where we have members.
Every employer must have at least the following procedures, which must be written down and published:
STANDARD DISCIPLINARY PROCEDURE
Step One - Written Statement: A written statement of the employee's alleged conduct sent to the employee
Step Two - Disciplinary Meeting:
The date of this meeting must be notified to the employee with at least five working days notice. The employee should be advised of their right to representation and the findings of the meeting should be notified to the employee with advice on their right to appeal.
Step Three - Appeal:
The employee must notify the employer of their wish to appeal. The appeal meeting must be held in reasonable time and preferably with a more senior manager present. The employee must be notified of the decision soon after the meeting.
Note:
In the event of instant dismissal due to alleged gross misconduct, step two can be missed:
STANDARD GRIEVANCE PROCEDURE
Step One - Written Statement:
The GMB member must set out their grievance in writing and send it to the employer.
Step Two - Grievance Meeting:
After a reasonable time has passed, the employer must call a meeting to discuss the grievance. Employees have the right to be accompanied at this meeting. After the meeting, the employer must advise the employee of the decision and of their right to appeal.
Step Three - Appeal:
The employer must invite the employee to a further meeting to discuss their appeal and this meeting should be attended by a more senior manager. After the meeting the employer must inform the employee of their decision.
GMB RECOGNISED WORKPLACES: INVESTIGATIONS
Where the employer recognises GMB and negotiates terms and conditions of employment with us, improvements on this framework should be negotiated and agreed. In particular GMB Workplace Organisers need to ensure that their local procedure also includes an investigation stage prior to step one on the legal minimum procedure. This stage is usually conducted 'without prejudice' and can be essential in helping you to establish the facts. It is often a good opportunity to convince the employer that there is no case and have the disciplinary dropped.DEALING WITH MEMBER'S DISCIPLINARY HEARINGS
Members will approach you and tell you that they have been called to a Disciplinary or Investigation Meeting.
You will first need to get a copy of the disciplinary procedure where you work. If there is no procedure advise your employer that the ACAS minimum applies. However the standard practice is as follows:
STAGES
1. Investigation. This will probably include interviews with your member and is designed to find out if any disciplinary action is required. You are entitled to represent your member at these meetings.
2. Exchange of evidence, witness statements and other documents between yourself and management prior to the hearing.
3. Disciplinary Hearing.
4. Appeal Hearing.
BEFORE THE HEARING
Make sure of the facts and get the full story from the member. If any evidence or facts are presented by management at the hearing that you were not informed, you will be in a difficult situation- Make sure that you understand the procedure
- Make sure that management are following their own procedure
- Advise the member of the possible consequences if the hearing goes against them which,
- depending on the gravity of the alleged offence, may include dismissal
- Talk to independent witnesses if you can, management certainly will
- Ask to see copies of witness statements taken by management and exchange all such documents.
- Do not be rushed into a disciplinary hearing. Insist on time to prepare your case. Remember that the burden of proof lies with management
ASK YOURSELF THE FOLLOWING QUESTIONS:
- Have adequate and clear instructions been given by management?
- Has appropriate training been given?
- Has a similar ‘offence’ been committed before (not necessarily by the individual(s) concerned this time)?
- Were any warnings given at that time?
- What was the punishment?
- In consultation with the member, decide whether it is better to argue mitigating circumstances rather
- than deny any wrong doing. Arguments in mitigation might include:
- Behaviour previously tolerated.
- Previous good record.
- Lack of information or training. Domestic pressures.
- Medical reasons.
- Unclear or unwritten rules
- Make sure you have a full written report of the matters to be discussed following the investigation hearings.
ARRANGING A HEARING
- Agree a date for the investigation hearing which allows at least five days to prepare
- Do not accept a disciplinary hearing unless an investigation has been carried out
- Agree a date for a disciplinary hearing at least five days in advance.
- If a member has been informed of a hearing and you cannot attend, seek a postponement in writing.
- You have the right to do this under section 10 subsections 4 and 5 of the Employment Rights Act 1999
AT THE HEARING
Meet management on equal terms
Treat them with respect for their position, but insist on respect for you and the member too.
Ask questions
The more questions you ask the more weaknesses you might find in their case and the more information you will obtain.
Try to resolve the issue at the first stage
Don't assume that by letting it go through to the next stage it will then be resolved.
Stick to the issue
Focus on the matter in hand, don't allow management to side-track you with other issues unrelated.
Discuss the issues, not the people
Discuss the issues central to the case, don't discuss personalities.
Use a positive approach
Take the approach of positive resolution rather than negative aggression.
Listen for the main point of the management's argument
Try to narrow down the differences between the two sides to establish the main point of the case.
Keep calm
Don't be provoked into losing you rtemper. Sometimes management will try to do this to make you lose track of the details and undermine your credibility.
Avoid arguing with the person you are representing in front of management
If a disagreement arises, ask for an adjournment to discuss the problem outside the meeting room.
Don't make threats
This weakens confidence in your abilities and loses you credibility if you can't carry them through.
If you are unsuccessful, act with dignity
Remember that you and the management will have other issues to resolve in the future. Get the decision in writing and discuss the right to appeal with your member.
Keep careful notes
You will need to have a record if you have to take the case to the next step, if the management say procedure was not followed correctly. Make a note of anything you feel was incorrectly handled to raise if the matter comes to an appeal. Do not allow management to argue that defects in the way they operate the procedure can be dealt with on appeal.
WHAT TO WATCH OUT FOR
1. A disciplinary hearing called immediately by management or before an investigation has been carried out. The purpose of the disciplinary process is to slow the situation down and to allow for all the facts to be uncovered and assessed. It is in managements' interests and not our members to speed things up. Use your member’s right to five days notice of any hearing. 2. Management tabling new evidence or information at the hearing that has not been disclosed or discussed at the investigation stage. To try to make a weak case stick, managers will often throw more and more evidence in. You are entitled to challenge any new information presented and have it ignored. 3. Management including people on its side of the hearing who have a clear conflict of interests in hearing the case. The immediate line manager, the person who raised the disciplinary should not be present and should be challenged if they are present.
DISCIPLINARY PENALTIES
You will be the first port of call for any members threatened with discipline or dismissal. Whilst you will be handling the initial hearing and any appeal it is important that you alert those who might have to deal with any subsequent legal action at the earliest opportunity.
Suspension
It is common practice for members to be suspended with full pay immediately following an allegation of gross misconduct. If this happens you should ensure the member has a written statement of the reasons, is receiving their pay and has a date for an investigatory hearing and confirmation that they can be represented by GMB.
Instant dismissal
An employer will sometimes dismiss an employee in a serious case of Gross Misconduct. Your member is entitled to a written statement of the evidence against them and the reasons why they have been instantly dismissed. Your member is entitled to be paid their wages up to the point of dismissal and is entitled to appeal if you believe the dismissal is unfair, seek advice from your GMB Officer on Employment Tribunal claims.
Dismissal
Following the Disciplinary Procedure an employer may decide to dismiss your member. They will have the right to appeal and the right to consider taking a case to Employment Tribunal following this appeal.
Action short of dismissal
Depending on the procedure, disciplinary action may be taken as follows following the hearing. Your member can appeal against any and all of these punishments.
Verbal warning
Minor infringements can lead to a formal verbal warning. This will be held on the member's records for a specific period of time as set out in the employer's procedure.
Written warning
If the infringement is more serious or if the infringement happens again, the worker may be given a formal written warning. This will be held of the members' records for a specific period of time as set out in the employer's procedure.
Final written warning
Where there is a failure to improve or change behaviour during the currency of a prior warning, or where the infringement is sufficiently serious, the worker may be given a Final Written Warning.
Action short of dismissal
Instead of simply sacking your member, the employer might demote them, transfer them or suspend them from work for a period of time.
Employment Tribunals (ET)
You must refer to your GMB Officer about any potential claims to Employment Tribunal for your member. ET claims are only submitted following assessment by GMB Officials. Cases that are considered by the ET to be 'frivolous or vexatious' can result in costs being awarded against GMB. It is essential that any member seeking to lodge a legal claim against an employer at Employment Tribunal has first used their own procedure or the legal minimum procedure as set out above.
There is a strict ‘three month less a day’ time limit from the date of the dismissal (even if there is a subsequent internal appeal to be heard), so it is essential that you move swiftly.
DO NOT WAIT FOR THE APPEAL – INFORM YOUR OFFICER WHEN THERE HAS BEEN A DISMISSAL.
He or she has access to specialist support from GMB Regional Legal Officers and from solicitors nominated by GMB.
DISCIPLINARY MATTERS CONCERNING YOURSELF OR ANOTHER WORKPLACE ORGANISER
As a representative of GMB you have certain rights and entitlements. It is against the law to discriminate against someone because of his or her trade union activity. If there is any suggestion of disciplinary action being taken against you or another workplace representative contact your GMB Officer as soon as possible, even if the supposed grounds are nothing to do with your role as a Workplace Organiser.Also insist that the employer writes to your Officer setting out the details.
Any GMB Representative or Workplace Organiser has the right to be represented by their Branch Secretary or GMB Officer in such circumstances.
EQUALITY ISSUES
Any disciplinary case that involves issues of race, gender, age, religious or sexuality discrimination should be reported to your Branch Secretary or GMB Officer straightaway as they may involve complex legal action in the future.
REQUESTING A POSTPONEMENT OF A DISCIPLINARY OR GRIEVANCE HEARING
Date........
Dear........
I am writing to request a postponement of the disciplinary/grievance hearing due to take place on..............
I am entitled, if I wish, to be accompanied by another work colleague or my trade union representative. I wish to be accompanied at the hearing.
My chosen companion for the hearing is not available to attend at that time.
I am able to propose an alternative time when my companion can attend, and this is.............
I trust that my request will be given your urgent attention and I look forward to hearing from you in this regard. Please would you also confirm receipt.
Yours sincerely
Signed..... [Member]
Date........
DEALING WITH MEMBERS'GRIEVANCES
Your employer should have a grievance procedure for individual problems.
A member or members with a grievance against management will expect your help if they cannot sort the issue out themselves with line management. Make sure you are familiar with the grievance procedure where you work and that the member understands that this has to be followed.You will submit any grievance on behalf of your member and seek a meeting for the grievance to be heard.
Make sure your grievance letter is short and to the point. It should refer to the relevant sections of the procedure. Avoid going into the detail of your member's case.
Arrange a meeting in work time that is convenient for your member and gives you time to prepare. The meeting should be arranged within the time limits set in your employer's written procedure. If any move is made by your employer to postpone a hearing ask for a full written explanation of the reasons and, if you accept the reason, agree a new date.
A sample grievance letter can be found at the end of this section.
BEFORE THE HEARING
You should also make sure that you have a copy of the member's contract of employment/written statement of terms and conditions to hand and all other material that supports the case.It is vital when handling either grievance or disciplinary issues that you begin by establishing the facts. You must avoid meeting management when they are better informed than you are. Take the member(s) involved to a private place, preferably the trade union office (individual matters should always be dealt with on a confidential basis and you should not discuss them with anybody who is not involved).
SPECIFICALLY YOU NEED TO ESTABLISH
- The exact nature of the problem.
- The names of the people involved.
- Exactly when the problem occurred, not 'about a week ago' but the exact date and time.
- Exactly how many times the problem has occurred, not 'a lot' but the number of times.
- Having established the facts you will have to exercise your judgement. Questions you must satisfy yourself about include:
- Is the grievance valid?
- Are current agreements being followed?
- Is the law being broken?
- Are there health and safety implications?
If you decide that the situation warrants further action you must consult the member(s) involved and ensure that they understand the consequences of taking the matter further, both if the matter is resolved in their favour and if it is not. To do this you yourself must have a thorough understanding of your grievance procedure, so study it in advance. As a general rule the pressure for action should be coming from the member(s), not from you.
You must also be satisfied that the grievance is valid. You are not obliged to represent members in pursuing invalid grievances, you will undermine your credibility with management if you do.
You should then prepare your arguments and identify your aims in a methodical way, specifically: Which events clearly illustrate the nature of the problem? Try to select incidents which are simple to explain.
What are your members aims? Try to have some idea of the minimum acceptable outcome.
AT THE HEARING:
State your case clearly at the meeting and be confident of your facts. Listen carefully to management's response. Take notes. Make sure that both sides agree on what action is to be taken.You should speak to your senior workplace representative or your GMB officer at the earliest opportunity if the initial hearing does not resolve the situation and advise them of the problem. They will need to be involved in the later stages of the procedure.
No matter how justifiable a grievance, you can expect to lose it if you miss the time limits under the agreement for processing the grievance at each step. Make sure you follow each step of your grievance procedure.
WHEN TO TALK TO YOUR OFFICER
- Immediately if the grievance is against another GMB member.
- Immediately if the grievance is about any issues to do with discrimination on the grounds of race,
- Gender, religion or sexuality.
- If the grievance involves more than one member and you feel it will not be able to be dealt with by the procedure alone.
RAISING A GRIEVANCE
Date........
Dear........
I am writing to tell you that I wish to raise a grievance with regard to the following circumstances:
I am entitled to a hearing to discuss this matter. I am entitled, if I wish, to be accompanied by another work colleague or my trade union representative.
I trust that my grievance will be given your urgent attention and I look forward to hearing from you in this regard. Could you please also confirm receipt.
Yours sincerely
Signed..... [Member]
Date........
APPEALS
You should also prepare arguments on behalf of your member for an appeal hearing if the punishment is wrong or unreasonable in a disciplinary case. Issues, which could form the basis of an appeal, might include the following:
YOUR CLAIM
YOUR AIM
- To have it lifted completely
- The punishment is unjust The punishment is too harsh
- To have it reduced
- Management have used the procedure incorrectly
- Rectify the situation and suggest training for managers
- Obtain retraining or relocation
- Your member cannot cope with the job
When submitting an appeal, avoid going into detail about the grounds of your appeal and refer to the relevant clauses in the procedure. Sample appeal letters are located at the end of this section these can be used following a disciplinary hearing and following a grievance hearing.
You will also be involved from time to time in lodging appeals on behalf of your members following unsatisfactory Grievance Hearings.
REQUEST FOR APPEAL HEARING (GRIEVANCE PROCEDURES)
Date........
Dear........
On...... I was informed that the Company had decided to....... based on my grievance of.......... raised on.............
I wish to appeal against this decision. I wish the following information to be taken into account:
I am entitled to an appeal hearing to discuss the matter. I am entitled, if I wish, to be accompanied by another work colleague or my trade union representative at the appeal hearing.
I trust my appeal will be given your urgent attention and look forward to hearing from you in this regard and would be grateful if you would also please confirm receipt.
Yours sincerely
Signed..... [Member]
Date........
REQUEST FOR APPEAL HEARING: DISMISSAL OR DISCIPLINARY ACTION PROCEDURES
Date........
Dear........
On.... I was informed that [insert name of company] was considering dismissing/taking disciplinary action [insert proposed action] against me.
I wish to appeal against this decision. I wish the following information to be taken into account:
I am entitled to an appeal hearing to discuss the matter. I am entitled, if I wish, to be accompanied by another work colleague or my trade union representative at the appeal hearing.
I trust that my appeal will be given your urgent attention and look forward to hearing from you in this regard and would be grateful if you would also confirm receipt.
Yours sincerely
Signed..... [Member]