What does an employee representative do, and what protections do they have?
This is the third and final installment in our three-part series looking into the importance of employee representatives (“reps”). Previously we have looked at:
- The circumstances in which an employer needs to consider electing reps.
- What an employer practically needs to do as part of the election process.
In this third instalment, we are looking at the role of reps and the special protections they benefit from. See below.
Q1: What is the role of a rep?
The reps’ main role is to receive information and to be consulted about proposed changes or dismissals on behalf of affected employees. In a collective redundancy situation, an employer is bound by a duty to inform and consult the affected employees’ reps, so that the employees’ opinions can be listened to and considered at each stage of the consultation process.
Q2: What sort of issues can reps consult about?
Reps can consult on a whole host of issues. In our first article of the series, we considered the circumstances which require consultation, which includes collective redundancies, TUPE situations, changes to pension schemes, and health and safety issues (among others).
Q3: What value do reps have in this new COVID-19 world?
Reps could be an extremely valuable resource to your organisation, especially as businesses are making important decisions about adapting their operations and modifying their workforce. Outside of the issues which employee representatives are legally required to be consulted on (i.e. collective redundancies and health & safety, as discussed above), reps can be informally consulted on a potentially much broader set of issues.
Q4: Is it possible to dismiss a rep?
Yes, but not if you’re dismissing them for being a rep. Reps are specially protected in the sense that it is automatically unfair to dismiss a rep because they performed, or proposed to perform, any relevant function or activity as a rep. In this context, a claim for automatic unfair dismissal can be brought by any employee acting as a rep regardless of the period of service they have with their employer (normally an employee needs two years’ service to bring a claim for unfair dismissal).
Q5: What about employees who are standing to be elected as reps?
The same answer applies. Both reps and those who are not yet reps but are standing for election as reps (“candidates”) benefit from the same automatic unfair dismissal protection as set out above.
Q6: Do reps / candidates benefit from any other special protection?
Yes, protection of reps and candidates extends beyond the protection from automatic unfair dismissal referred to above. Reps and candidates are also protected against being subjected to detriment by their employer on grounds of their functions or activities. On a careful reading of the legislation it would appear that employees are not protected from being subjected to detriment simply on the ground of their status as a rep; however, an employee could almost certainly tie any detriment they have suffered due to being a rep to the functions or activities they perform as a rep.
Q7: How does a rep perform their role, alongside their other duties of employment?
Both reps and candidates have the right time off work so that they have enough time to perform their functions as a rep or candidate. Reps and candidates can also use this time off work to undergo relevant training which they need in order to perform these functions. It is important to note that reps and candidates do not have the right to take time off work – in essence, they have the right to request time off, and then subsequently be permitted by their employer to take such time off. This means that an employer cannot unreasonably refuse an employee’s request to time off work for these purposes.
Q8: Should employees be paid for time off to act as a rep?
Yes, reps and candidates are also entitled to be paid for any time off work they are permitted to take in order to perform their functions or activities as a rep/candidate.
Q9: Do employers have any obligation to provide facilities for reps to perform their role?
Yes, employers are under a general legal obligation to provide reps with appropriate accommodation and facilities.
