The subject of employee representation and associated rights has long been a matter of tension in Irish employee relations. Going forward, this tension is likely to increase, as trade unions avail of Ireland’s Presidency of the European Union (EU) to lobby for collective bargaining rights and the EU itself continues to progress Directives of significant relevance to representation rights (e.g. pay transparency). Alongside these developments, a selection of political parties has committed to enhancing trade union bargaining rights should they ever secure Governmental status.  

Of course, the value of  employee representation at work – whether it be via a staff representative group or a union - should not be underestimated, as it can bring advantages to all parties. That is, competent representatives can play a role in helping improve employee satisfaction, motivation and staff retention (see Note 1) and have memorably been described as being ‘more of a lubricant than an irritant’ when it comes to engaging in conflict scenarios. By giving employees a voice at  their workplace, it  helps ensure that their views are aired and assessed. Such representation can also enhance an employer’s reputation, as it reflects a commitment to fair and respectful human resource and employee relations practices. Furthermore, their presence can reduce  risks and costs, via the prompt  prevention and resolution of  issues, enabling compliance with prevailing policies, procedures and employment laws.

Employment Laws and Employee Representation

Like many human resource and employee relations related issues, the relevance of employee representation is brought more sharply into focus by legal provisions (e.g. discipline/grievance issues, health and safety, right to bargain, collective redundancies, information and consultation, works councils). In this regard, it is notable that the recent joint Industrial Relations News/Chartered Institute of Personnel and Development national survey found that employee information and consultation fora are no longer a dormant feature of employment relations, as around two-fifths of respondents reported that they now have such an employee forum. An employees’ forum (or staff representative group’s) role, rights and responsibilities are addressed in this Hub article. 

The operation of such fora is concentrating many minds of late, due to the emergence of a plethora of EU Directives that place consultation obligations on employers (e.g. pay transparency, corporate sustainability reporting, platform work and AI/algorithmic management). Indeed, it is notable (and consequential) that in contrast with many past practices, the considered assessment is that the EU Commission will take the view that where the election of employee representatives is necessitated, these representatives will not be ‘ad-hoc’ but may well be in place for a considerable period of time. Read here. This contrasts with the organisational experience associated with collective redundancy legislation, that necessitates an employee information and consultation process should the collective redundancies under consideration meet specified thresholds. In such scenarios, it has been commonplace for ad-hoc representatives to be elected, who then stand down on completion of the consultation process.

Furthermore, the received wisdom in respect of suggestions that organisations with ‘direct engagement models’ are exempt from the need for elected employee representatives  seems wide of the mark, as EU law provides no such opt out. Given the range of legislative obligations en route from the EU – including reform of the 1996 Transnational Information and Consultation Act – it is anticipated that the rights of employees and their representatives will be strengthened.

A high-profile example of this strengthening is to be found in the Pay Transparency Directive, that requires employers to engage with employee representatives at multiple points in the pay transparency process. This involvement may well become a permanent fixture in organisations’ employee relations structures, along the lines of health and safety committees. A consequential outcome of the process with relevance to the representatives’ role is that where there is a gender pay gap of more than 5% that cannot be justified on objective, non-gender grounds, employers will have to work with the employee representatives to identify the reasons for the gap and to work out a route for closing it.

Representation Rights

Turning to the status quo, in a recent contribution to the ‘How To’ series, it was noted that an employer who refuses an employee representation by a colleague of their choice (incl. a trade union official), may fail to defend an unfair dismissal claim  on procedural grounds. Indeed, given the array of case precedents referenced therein, the Workplace Relations Commission’s (WRC) ‘Code of Practice on Grievance and Disciplinary Procedures’ (i.e. S.I. 146/2000) and the Labour Court’s ‘Opinion 62’ (issued in 2006) on the matter, it is clear that an employer’s denial of any such representation in disciplinary/dismissal or grievance-type scenarios could be described as risky, if not reckless. 

Notably, the reputable RDJ corporate law firm’s website relays an interesting tale of a case that went before the WRC in 2023. In this instance, the  employee wanted to have his mother as his representative at his disciplinary hearing. In line with the aforementioned Code, the employer’s policy provided for representation in the form of a fellow employee or a trade union representative. So, the employee’s request was refused and  his employment was terminated. When the matter eventually reached the WRC, the Adjudication Officer (AO) found  that the hearing notice provided to the employee did not refer to the right to representation. 

Furthermore, given the short notice of the hearing, it was held that the employee would have had great difficulty securing representation. It was also noted that the employer was ‘entirely wrong’ to say that any third-party present for the meeting would not be given access, as the Code of Practice clearly provides a right of representation by a trade union official or a co-worker. The WRC also found an array of other deficiencies in the procedures applied, ultimately giving rise to an unfair dismissal determination. In conclusion, the aforementioned RDJ source warns that: ‘there were shortcomings in relation to the employee’s right to representation and while it is unclear what weight was attributed to this by the A.O., it was undoubtedly a factor in finding the dismissal was unfair’.

Indeed, given that one is legally entitled to professional representation should matters reach an external third-party forum, it’s hard to see the sense of running the risk of an unfavourable finding  purely on this procedural ground. Furthermore, knowing the full extent of an employee’s defence – as outlined by a competent representative, rather than the employee her/himself or an inexperienced  work colleague - might also obviate the unhappy experience for an employer of a failed, costly and publicly embarrassing outing before a third party.

Related thereto, it is also notable that in 2023, the  WRC established that a ‘church body’ had effectively ‘gagged’ a union representative in the course of a dismissal appeal hearing. This raised a ‘serious concern’ for the presiding AO, leading to an unfair dismissal finding, as it was ‘grossly unfair to effectively gag the representative’ (ADJ-00027984). 

In addition to this representative provision in the aforementioned Code, it is also notable that the WRC’s 1993 Code of Practice on the ‘Duties and Responsibilities of Employee Representatives’ states that: ‘the manner in which employee representatives discharge their duties and responsibilities significantly affects the quality of management/labour relations in the undertaking or establishment in which they work’. Hence, this raises the question as to what scope such a representative should be extended in the course of a formal in-house meeting relating to a grievance or disciplinary issue.

Representation At Discipline & Grievance Meetings

To help answer this question, the following ‘best practice’ guidelines are noteworthy, in the event of  the employee agreeing to the representative playing such a role on their behalf:
 

• The relevant representative can explain an employer’s policies/procedures and provide guidance for the affected employee on how to prepare and present their grievance claim and/or respond to allegations. Related thereto, they can review any evidence presented by the employer and advise the employee on how to respond thereto.
   
• The representative can attend  meetings with management, to provide support to their colleague employee and take notes.
   
• The representative can present and/or sum up the employee’s case or response and raise issues/points in support of their case. That is, the representative can address a hearing on an employee’s behalf, as they present and fully explain an employee’s claim or response to any allegation made against them.
   
• The representative can confer with their colleague employee during the hearing. In this regard it is common for requests for a (normally brief)  adjournment to be granted.
   
• The representative cannot answer questions on behalf of the employee. If they do so, they should be asked to desist, whilst the question(s) are repeated for the purpose of eliciting a response from the employee. That is,  the employer can explain to the relevant representative that they understand that they are in attendance to represent the affected employee, but they would like that employee to directly answer the specific questions that are put to them.
   
• The representative can challenge the employer’s case, should they believe that there are inaccuracies/inconsistencies therein. Related thereto, they can ask questions and seek clarification from the employer’s spokespersons.
   
• Representatives may have to appear as witnesses before an external third-party forum (e.g. the WRC,  Labour Court). Hence the application of common courtesy (and common sense) in interactions may prove advantageous.
   

Of course, as noted above, the employee representation issue also surfaces in respect of an increasing array of workplace meeting scenarios, necessitating the application of best practice. Detailed guidance in respect of such  meeting scenarios is available on this Hub. Likewise, guidelines in respect of the all-important art of bargaining with staff and/or union representatives can also be accessed at this Hub.

Conclusion

Whilst the controversial subject of trade union representation and recognition rights for collective bargaining purposes continues to rumble on at local, national and international levels, there is clearly a  case for the  prudent employer to facilitate representation – incl. trade union representation - in respect of (individual) grievances and disciplinary/dismissal scenarios. This is particularly pertinent for an employer who refuses an employee representation by a colleague of their choice (incl. a trade union official) in scenarios that ultimately give rise to a dismissal.

As noted above, the longstanding view in respect of a union representative’s role in such scenarios is that it is frequently ‘more of a lubricant than an irritant’. However, should such representation prove problematic (e.g. in the form of an awkward representative), based upon a remote tribunal  hearing’s finding in the UK in 2023, ‘best practice’ warns that this does not constitute grounds for their exclusion.  Reviewing the scenario, leading UK legal experts Keystone Solicitors explain that: ‘Rather than excluding and carrying on [the disciplinary process] it would have been better to adjourn the [proceedings], resolve the issues of behaviour and then continue. As in any meeting that gets out of hand, the best course of action is to take a break, calm the situation and continue’. Of course, should the representative act in a rude or unnecessarily obstructive manner, an employer would be acting reasonably by eventually excluding them. Indeed, case precedent indicates that inappropriate behaviour by a complainant or his/her associates at a third-party hearing may well give rise to the proceedings being dismissed (ADJ-00026883 and ADJ-00020017). However, the representative role is frequently one that is helpful, balanced and objective and probably preferable to dealing with an aggressive, abrasive and awkward legal counsel at an external third-party forum.