Role of Reps and Special Protection

Role of Reps and Special Protection

By Chris Coombes and Elliott Lauder - 28 July 2020

What does an employee representative do, and what protections do they have?

This is the third and final instalment 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 (see here for more information).
  • What an employer practically needs to do as part of the election process (see our employee rep flowchart).

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.

The consultation with the reps must commence “in good time” (which can mean at least 30, 45 or 90 days before the first dismissal, depending on how many dismissals are being proposed or the type of issue being consulted on). Once consultation has begun, reps have the authority to voice concerns on behalf of the affected employees about ways to avoid the dismissals, ways to reduce the number of employees to be dismissed and to mitigate the consequences of the dismissals. 

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).

In the context of consulting about collective redundancies, the employer has a statutory duty to disclose the following information to the elected reps:

  • Reasons for the proposals;
  • The numbers and descriptions of employees whom it is proposed to dismiss;
  • Total number of employees with such a description employed by the establishment;
  • Proposed selection method;
  • Proposed method of dismissals, including the time period over which the dismissals will take place; and
  • Proposed method of calculating redundancy payments.

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.

Here are current examples of some of the “hot topics” which employees could benefit from being informally consulted about (if elected reps were in place):

  •  Arrangements for employees returning to the office where they have been working from home during the pandemic (some of this might be considered by a health and safety representative, but having more general reps could be beneficial in relaying the workforce’s feelings and anxieties about returning to the office);
  •  If your organisation has adapted well to remote working and aims to continue in a similar vein, then reps could be informally consulted with about a more standardised, longer-term flexible working agreement.
  •  In organisations where parts of the workforce have been placed on furlough, including furloughed employees in the election process for reps could help those employees reintegrate into the business. The responsibilities involved in being a rep are not restricted by the furlough scheme in the same way that a furloughed employee cannot carry out their normal work duties.

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).

That said, an employer can still dismiss an employee who happens to be a rep if the principal reason for the dismissal is unrelated to the employee’s status as a rep. For example, an employer may still be able to fairly dismiss an employee (who is also a rep) on the grounds of redundancy, so long as the relevant criteria for a fair redundancy dismissal is satisfied and there is a genuine redundancy rationale.

It is very important that employers who wish to do this ensure that the reasons for the dismissal are well documented and communicated very clearly to employees, to minimise the risk of any employees trying to tie their status as a rep to the reason for dismissal. It is also important to remember that it will be automatically unfair to select an employee for redundancy if the employee’s status as a rep is factored into the selection criteria (i.e. they must be selected for redundancy on other lawful grounds). 

Employees who are automatically unfairly dismissed for being or acting as a rep in relation to collective consultation are entitled to receive a minimum basic award of £6,562 (the maximum being £16,140). The employee may also receive an additional compensatory award for being unfairly dismissed (the current cap being £88,519).

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.

In addition, employees are also protected against being subjected to any detriment (short of dismissal) which they have suffered due to participating in an election of reps. This is likely to cover a wide range of activities linked to the election of reps, including (but not limited to) voting, nominations, generally canvassing support and/or acting as an officer in relation to the election.

“Detriment” for these purposes in undefined, however one of the starting points is that it falls short of dismissal - where an employee has been dismissed, they may have a claim for automatic unfair dismissal, as mentioned above. In practical terms and in this context, “detriment” will be construed to mean any disciplinary action other than dismissal (e.g. a warning) and/or any financial or economic disadvantage suffered by the employee (e.g. a pay cut or refusal to pay wages). Again, as with automatic unfair dismissal, employees do not need a minimum period of service to qualify for either of these forms of protection.

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.

The amount of time off a rep or candidate may seek for these purposes is not defined in the legislation: it will be deemed to be whatever is reasonable in the circumstances. Although the ACAS Code of Practice on time off for union reps is not directly applicable for non-union reps, it nonetheless contains helpful guidance on what will be considered good practice in this context – it is unlikely to be lawful to give non-union reps less time off than is recommended for union reps. In any case, the starting point when considering what is a “reasonable” amount of time off should be to consider the particular needs of the rep or candidate in question and the circumstances in which they are operating (e.g. urgency).

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.

Note however that this is an entitlement to paid time off during working hours, meaning that an employee cannot claim extra pay from their employer if they have been performing these duties in their spare time, outside of working hours. The amount of pay which reps are entitled to in this context should be calculated by reference to the employee’s hourly rate of pay. 

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.

They must also have a means of accessing the affected employees. Reps will often need to spend a significant amount of time speaking to and consulting with the affected employees in a collective redundancy situation, and having adequate facilities for this purpose will make their job far easier. What “appropriate” facilities amounts to in practice will vary from business to business. In some circumstances, particularly in large workplaces with a large number of reps or where a particular rep spends a large amount of their time performing “rep” duties, this may mean having a particular room or function area which is exclusively reserved for those performing “rep” duties. In most cases however, an exclusive area will not be required – an area which is temporarily made available for meetings, calls and other activities will be sufficient. 

If you or your organisation would like more information about electing employee representatives, please get in touch with your usual GQ|Littler contact or email [email protected].