Working with non-union representatives

What is an employee representative?

Employee representatives may be chosen by their fellow employees or appointed by management. The roles of employee representatives vary but most:

• receive information from and give information to management
• pass on information more widely within the workforce
• are consulted by management over certain workplace matters

Employee representatives operate mainly in businesses that:

• do not recognise a trade union for collective bargaining purposes
• recognise a trade union in respect of some, but not all, of their employees

Why consult employee representatives?

Most of the legal duties to consult employee representatives arise in one-off situations such as large-scale redundancies or business transfers. Therefore, if you do not recognise a trade union, you may not have employee representatives in place at times when those one-off events are not occurring.

However, some businesses have employee representatives in place on a permanent and ongoing basis so that they:

• will not have to arrange for employee representatives to be elected when a legal duty arises
• can inform and consult their workforce about business performance or workplace issues
• can build trust through better workforce communications
• can improve staff engagement and productivity, which in turn can help prevent disputes

When to consult employee representatives

You must consult employee representatives:

• in collective redundancy situations - see employee representatives during collective redundancy situations
• where the employer proposes to dismiss and re-engage 20 or more employees as a result of contract variation
• when employees are transferred from one employer to another - see employee representatives during business transfers
• on certain changes to occupational and personal pension schemes - see pension representatives

In these situations, if you don't already have employee representatives, you will have to arrange for them to be elected - although you don't need to 'force' employees to elect them.

You may also need to consult employee representatives on workforce agreements concerning:

• maternity and parental leave schemes
• the use of successive fixed-term contracts
• working time, eg for daily and weekly rest periods, and rest breaks during the working day

See representation for workforce agreements.

Ongoing consultation with employee representatives

You may have to set up an ongoing information and consultation arrangement with elected employee representatives. This might be not only on a national level but also across the European Union.

However, you only have to do this if the relevant employees make a valid request for such an arrangement.

Read more on ongoing information and consultation arrangements.

Note that you also have a duty to carry out ongoing consultation with employees or their representatives on health and safety matters - see ongoing consultation on health and safety matters.

Voluntary ongoing consultation with employee representatives

If you don't have to inform and consult, you can still come to a voluntary agreement with employee representatives on ways in which they can:

• make employees' views known to management
• help strengthen both management's and employees' understanding of workplace issues and other matters affecting the business
• help create an atmosphere of mutual trust between employees and management and therefore improve workplace relations

Examples of voluntary arrangements with employee representatives include:

• individual informal discussions or formal group meetings
• works councils, eg joint consultative committees and joint working parties where representatives of employers consult employee representatives for their views before making decisions - this could be through regular discussion of matters of mutual concern or by meeting to consider and resolve specific business issues

Representation of individual employees

In non-unionised settings, a worker may want to choose an employee representative to act as their companion because that person may be more familiar with the tasks associated with the role of spokesperson.

Alternatively, they may choose a companion who is either a full-time official employed by a union or a lay union official who has been reasonably certified in writing by their union as having experience of or as having received training in, acting as a worker's companion at disciplinary or grievance hearings. The union official can be from any trade union, regardless of whether that union is recognised by you.

Read more on disciplinary procedures, hearings, and appeals, and handling grievances.

Read the LRA Code of Practice on Disciplinary and Grievance Procedures.