Dismissal of an Employee or Workforce Representative

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Key points
§  Add a note hereEmployee and workforce representatives appear in a variety of situations involving negotiations or consultations with employers. Thus, an employer is legally bound to consult appropriate representatives when planning 20 or more redundancies or when proposing the sale or transfer of his (or her) business (or part of the business) or the purchase of another business (and is liable to heavy penalties for failing to do so).
§  Add a note hereThe term 'appropriate representatives', in the context of collective redundancies and business transfers, means trade union appointed representatives or, where there is no trade union representation, employees elected by their peers to represent their interests. If there are no elected employee representatives, the employer must allow sufficient time, and provide appropriate facilities, for the election of those employees who have put their names forward as candidates (per sections 188 and 188A of the Trade Union & Labour Relations (Consolidation) Act 1992 and regulations 10 and 10A of the Transfer of Undertakings (Protection of Employment) Regulations 1981.
Add a note hereWorkforce representatives
§  Add a note hereUnder the Working Time Regulations 1998, certain provisions in the Regulations may be modified or excluded by a workforce or collective agreement. There are similar provisions in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The term 'workforce agreement' means a written and signed agreement between an employer and his (or her) workers or their representatives. If there are no workforce representatives elected to represent the interests of workers (or a group of workers) whose terms and conditions are not otherwise provided for in a collective agreement, the employer must provide the time and facilities needed for an election to take place. The employer must also allow sufficient time for candidates to put their names forward and for votes to be cast and counted. Although the employer may limit the number of representatives to be elected, he (or she) does not have the right to exclude or prevent any worker putting his (or her) name forward as a candidate.
Add a note hereDismissal of an employee or workforce representative
§  Add a note hereIf an elected employee or workforce representative (or a candidate for election as such a representative) is dismissed (or selected for redundancy) for performing (or proposing to perform) any of the functions or activities properly concerned with his (or her) role as such a representative (or candidate), the dismissal will be held to have been inadmissible and unfair. In short, an employee or workforce representative (or candidate) has the right to present a complaint to an employment tribunal, regardless of his age or length of service at the material time (sections 101A(d), 103, 105(4A) and (6),108 and 109, Employment Rights Act 1996). The complaint must, however, be presented to the tribunal within three months of the effective date of termination of his contract of employment.
§  Add a note hereIf the tribunal finds the complaint to be well-founded, it will order the employer either to reinstate or re-engage the dismissed employee or pay him (or her) compensation, which latter will include a minimum basic award of £3,500 (ibid. section 120(1)) which latter figure will be increased or decreased by order of the Secretary of State if the retail prices index for September of one year is higher or lower than the index for the previous September.
Add a note hereApplication for interim relief
§  Add a note hereAn employee or workforce representative bringing a complaint of unfair dismissal to an employment tribunal, in the circumstances described above, may apply to the tribunal for interim relief (briefly, a direction to his (or her) employer or former employer ordering him to reinstate or re-engage the representative pending the determination of his complaint at the subsequent full tribunal hearing). An application for interim relief must be submitted to an employment tribunal within seven days of the effective date of termination of the employee's contract of employment (ibid. section 128).
§  Add a note hereAn employment tribunal is duty-bound to hear an application for interim relief as quickly as possible, but not before sending the employer a copy of the employee's application and giving the employer at least seven days' advance written notice of the date, time and place of the hearing.
§  Add a note hereIf, on hearing the employee representative's application for interim relief, the tribunal agrees that there is a likelihood that the complaint will be upheld at a full tribunal hearing (which may not take place for several weeks or months), it will order the employer to reinstate or re- engage the employee until the date set for the full hearing. If the employer fails to attend the interim hearing or has made it clear that he has no intention of reinstating or re-engaging the employee, the tribunal will make an order for the continuation of the employee's contract of employment. This means, in effect, that the employer must continue to pay the employee his or her normal wages or salary (less any reduction in respect of payments already made) until the employee's complaint is finally heard and decided. A failure to comply with the terms of a continuation order will likewise attract an award of compensation that, if need be, will be enforced by the ordinary courts.

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