Working with non-union representatives
Employment-protection rights for employee representatives
Certain employment-protection rights apply to employee representatives who have been elected for the purposes of information and consultation:
- during a collective redundancy or business transfer situation - see employee representatives during collective redundancy situations and employee representatives during business transfers
- as representatives of employee safety - see ongoing consultation on health and safety matters
- on proposed changes to occupational and personal pension schemes operated by the employer - see pension representatives
- under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- as part of a European works council or special negotiating body - see the page in this guide on ongoing information and consultation arrangements
These rights are as follows:
- The right to reasonable paid time off to carry out their duties. The law does not specify the amount of time off that it is reasonable to allow since this will vary according to the circumstances. You should pay the representative at the appropriate hourly rate for the period of absence from work. You can calculate this by dividing the amount of a week's pay by the number of normal working hours in the week.
- The right not to be subject to a detriment or to be dismissed because of their activities (or proposed activities) as an employee representative - any dismissal in these circumstances is automatically unfair.
In addition, representatives of employee safety and those employee representatives dealing with collective redundancies and business transfers have rights to time off to be trained in their duties. They are also entitled to access office equipment and other workplace facilities to assist them in undertaking their roles.
Employee representatives elected for the purposes of negotiating a workforce agreement have the right not to be subjected to a detriment or be dismissed because of their activities or proposed activities - see representation for workforce agreements.
Such representatives do not have the statutory right to paid time off to carry out their duties. However, it's good practice to give them this right anyway.
Note that these employment-protection rights also apply - as appropriate - to those who are candidates in an election to become an employee representative.
Offering discretionary rights to employee representatives
You should consider allowing employee representatives access to office equipment or other workplace facilities to carry out their work effectively.
What is appropriate will vary according to the circumstances. Communication systems vary from workplace to workplace, and it might be appropriate for you to provide the representative with workspace, access to telephone, the internet, email etc in order to carry out their duties.
You should also consider giving employee representatives paid time off to be trained in their representative roles.
Other representatives - eg those who are consulted voluntarily by employers - have no statutory rights, though it may be in your interest to allow such representatives access to facilities and the time off to perform their duties.
Tribunal claims for employee representatives if their rights are infringed
Employee representatives - or candidates in an election to become a representative - who are dismissed or subjected to a detriment as a result of their activities may lodge a complaint with the Industrial Tribunal.
A tribunal/arbitrator will not normally consider such a claim unless it is made within three months of the date when the alleged infringement occurred.
If the tribunal/arbitrator finds that you:
- dismissed the employee unfairly, an order of reinstatement or re-engagement may be made or alternatively, an award of compensation
- an order to award compensation may be made
- unreasonably refused a representative or candidate paid time off, a declaration to that effect will be made and the individual will be awarded an amount equal to the pay which they would have been entitled to if you had not refused the time off
- failed to pay a representative or candidate the appropriate amount for paid time off, an order to pay the amount due shall be made