Opinion

Stephen Levinson, partner in KLegal, gives his personal view of some topical
issues

Recognition at the request of one?

How is red tape measured? If by length, all employers in the country should
expect to have several miles of it dumped on them during June. This is when the
new right to be accompanied at disciplinary and grievance meetings is expected
to come into force.

The right was spawned at a late stage in the lengthy bargaining process that
gave rise to the recognition rights for trade unions now contained in the
Employment Relations Act 1999. In return for not getting quite all they wanted
from the Government the unions were offered, and gratefully received, this
unexpected treat.

The right allows all employees to choose to be accompanied by a trade union
official at disciplinary and grievance meetings. As the right exists
irrespective of any recognition of a trade union by the employer, it is clearly
a valuable way for unions to prove their worth and provides a platform to
recruit new members.

The right also applies to a fellow employee as well as a trade union
official but this is of little practical impact as most employers already
permit this in their existing procedures. Employers who, up to now, have had an
apoplectic fit if a union official came within 100 yards of their workplaces
will now have to agree to their presence.

Put even more provocatively, the right amounts to compulsory recognition of
trade unions, for some important purposes, at the request of a single employee.

Why is there so much red tape? As usual, the devil is in the detail and
there is a lot of it. Five sections of the 1999 Act are required to set them
all out and it is a safe bet that many of the provisions will result in
tribunal cases.

First there is the odd wording that triggers the right. The employee must be
required or invited to attend a disciplinary or grievance hearing. Well, no trouble
with the disciplinary – here the requirement will be easy to spot. But what
about the grievance hearings? Are these not often requested by the employee and
agreed to by the employer? Is that what you normally think of as an invitation?

Ditto with those procedures which give the employer a right to call for a
grievance hearing. Hair-splitting or not, who is willing to bet some employers
will not take the point?

Also, has it occurred to you that you have meetings in your procedures and
not hearings?

If those points are too fine many observers have taken another. To have the
right the employee must be acting reasonably when making the request. No help
is given in the Act about the criteria on which this is to be measured.

Most commentators relate the reasonableness of the request to the
seriousness of the subject matter of the meeting. It might also be a factor if
the employee is an over-persistent exerciser of the grievance procedure. Both
arguments may lead to a refusal and, in turn, a visit to the local tribunal.

Let us suppose you get past the entitlement to be accompanied – and, of
course many will – what happens at the meeting? Is the accompanying person a
representative or simply there to advise and support?

The daft answer in these rules is "both". The companion may
address the hearing (the number of times is not specified) but not answer
questions on behalf of the employee. The companion must be also allowed to
confer with the employee, presumably in private, and again the number of times
is not specified.

Those who are familiar with a certain category of trade union officials will
quickly see that this is a splendid recipe for a number of chaotic meetings. If
a camel is a horse designed by a committee the same bunch were probably
responsible for this rule.

Read the provisions with care and try not to despair too much. Also, do not
blame the lawyers – this one is definitely down to the scurvy politicians.

Code comfort

Look out for the new Code on Disciplinary and Grievance Procedures if for no
other reason than it may help with the matters set out above, as there is a
whole new section on the companion right. The consultation period for the draft
code has been closed for two months so it should not be long before it is
finalised. As ever, it will be a useful practical guide and admissible in
tribunal hearings. If you want to see it, download it from the Acas web site at
www.acas.org.uk

A little knowledge

The Lord Chancellor is experimenting in the Employment Appeal Tribunal. He
has asked six existing part-time judges to spend their judging time in the EAT.

The startling thing about this is that most of them are well-known
employment law specialists. This is a radical departure from the traditional
approach of putting judges into cases in areas of law they know little or
nothing about – the "gifted amateur" syndrome beloved by generations
of chancellors. Give two cheers where they are due.