new right to be accompanied at disciplinary and grievance hearings has led to
warnings of union recognition by the back door. But such fears are misplaced –
even for non-unionised workplaces such as Air Miles, argues Tim Craddock
Listening to some commentators, 4 September 2000 will go down in the annals
of employee relations as the day the world changed. From that date, all workers
(workers, note, not just the narrower definition of staff) have the right to be
accompanied by a trade union official in disciplinary and grievance hearings.
No longer does someone subject to a disciplinary hearing have to rely only
on a work colleague to help him (if he was even allowed that). He now has the
right to call on the services of a trade union official, whether or not his
employer recognises a union.
For employers which do not recognise unions, this can seem a major issue.
Some have probably never had to deal with a union in their lives. It may
conjure up visions of strikes, pickets and protests. Union officials are
something to be feared and to be regarded as not quite the sort of people you
take home to mother.
Taken together with the recently introduced statutory right to recognition –
where unions can "force" recognition if they have sufficient members
– the new right to accompaniment is seen by some as opening the floodgates to
union power. Under this argument, unions will use "trojan horse"
workers to bring in union representatives to disciplinary and grievance
hearings and then the unions will use this as an opportunity to get the other
workers to join the union. Hey presto, union recognition!
So, is this fear justified? Is the new right a back door for unions to force
employers to recognise them? Does it mean a fundamental shift in the balance of
power in the workplace back to the union-dominated 1970s?
I believe these fears are misplaced. For unionised employers, the right to
accompaniment will have little practical impact as union representatives will
already be able to represent staff at disciplinary and grievance hearings.
For companies which are not unionised, it will mean dealing with a new
situation, but certainly not one which should be unmanageable. It will all boil
down to how it is approached.
The Air Miles approach
Air Miles is probably the best known loyalty scheme in the UK. Over five
million people collect Air Miles through their day-to-day purchases. They can
redeem them for a wide range of leisure products, from flights and holidays to
cinema tickets and restaurant meals. Founded in 1988, the scheme has grown
rapidly and now employs over 1,000 staff split between two sites, one in
Crawley and one in Birchwood near Warrington.
The company is a wholly-owned subsidiary of British Airways, but, unlike BA,
is not unionised. The new right to accompaniment may, therefore, have an
impact. We are currently reviewing our disciplinary and grievance procedures as
part of a wider review. They are part of a "Performance, Behaviour and
Relationships" policy which dates back to the founding of the company.
Part of our review includes incorporating the new right.
Some non-unionised employers may want to take the monastic approach – that
is, not tell their workers that the new right exists. Certainly, there is no
legal obligation to inform staff – the right is to be accompanied, when there
is a reasonable request from the worker.
Why not just wait to see if any of your workers pick up on it? Who knows,
they may remain in ignorance and you will never have to deal with a union
official knocking on your door.
Such an approach is mistaken. First, why try to hide something which is now
the law? It has received wide coverage in the media and people are increasingly
aware of their legal rights at work. If you try to pretend it does not exist,
you will only succeed in creating an environment of distrust. This means that
when the situation arises (as it will) of someone asking to be represented, you
will be on the back foot. This can only add to the tension at the disciplinary
or grievance hearing.
Second, if you have respect and consideration for your staff, you should be
open with them about their entitlements. If you are calling someone to a
disciplinary hearing – or if a member of staff is raising a legitimate
grievance – tell them of the right to be accompanied. That way, a climate of
trust is created at the outset of what can be a traumatic time.
What about the role of the union representative? If you read the small print
of the rules, the union representative may address the meeting and may confer with
the worker concerned. But the representative may not ask questions. Should this
be taken as an opportunity to marginalise the representative’s role?
Again, I would suggest that to try to do so will cause unnecessary tensions.
Far better to take a proactive approach and set a constructive tone for the
disciplinary or grievance hearing. That way, points scoring over narrow
procedural matters can be minimised.
The key is to remember what the purpose of a disciplinary or grievance
hearing is. Put simply, a disciplinary hearing is to allow the employer to put
a case to an employee, give the employee a proper opportunity to respond and
allow discussion to take place before the employer reaches a conclusion; a
grievance hearing enables an employee to put forward something which concerns
him and to discuss it with his employer, with a view to getting the matter
Consequently, anything which facilitates this process is beneficial;
anything which confuses it is destructive. A constructive and experienced
representative can help someone marshal his points and present them in a clear
way. This can only benefit the decision-making process, ensuring an outcome
which is fair and, importantly, seen to be fair.
At Air Miles, one of our five core values is "care for people". To
some, this might sound like motherhood and apple pie – a nice thought, but not
relevant to the real world. To us, it informs our approach to managing our
staff. If we have a disciplinary or grievance situation, it is important to us
that the person understands how the process works and what the outcome could
be. Critical to this is that the person has good representation.
We have a system of consultative committees, to which each area of the
company elects a representative. Staff
are able to be represented by their consultative committee representative or by
another work colleague.
They now have the additional option of a trade union representative. Under
our new draft disciplinary and grievance procedures, we have recognised the
right to be represented in a positive way.
Role of representatives
A disciplinary or grievance hearing can be a difficult time. We encourage
staff to have a representative in such hearings. We do not set hard and fast
rules for the role of the representative, other than that they observe the
appropriate courtesies. We are happy for the representative to support the
employee in whatever way is reasonable. For some, this will be to act as moral
support; others might want their representative to present their case and ask
questions on their behalf. The important thing is for the employee to be able
to put his case in the best possible way.
Although Air Miles does not have any formal relationships with trade unions,
we recognise the legal right for any member of staff to join a union of their
choice. If a member of staff is a union member, then he or she may choose to
have an external union representative. All we ask is that the member of staff
informs his or her manager in advance, so we can arrange in advance reasonable
facilities for the union official.
We believe this sets a constructive tone, which will reassure staff that
they will not be seen as trouble-makers if they exercise their legal rights.
Trust in your staff and keeping things in perspective are the essentials in
dealing with this – and other – new employment rights.
The new law – key points
– Where a "worker" is required or invited by his or her employer
to attend a disciplinary or grievance hearing, he or she can reasonably request
to be accompanied by a union official of his or her choice (or by a fellow
– A disciplinary hearing is one which could result in the issuing or
confirmation of a formal warning or some other disciplinary sanction.
– A grievance hearing is one which concerns "the performance of a
duty" by the employer in relation to the worker (strictly speaking, this
relates to a legal duty the employer owes the worker, such as a health and
– The representative may address the hearing and confer with the worker, but
may not, technically, answer questions posed to the worker.
Tim Craddock is head of employment law and recruitment at Air Miles
Travel Promotions Ltd