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Conciliation in the workplace and nominating an independent representative

Conciliation in the workplace and when to call in an independent representatives.

Sometimes, issues in the workplace escalate to a point where outside intervention is needed if an employee and an employer in dispute cannot resolve a problem amicably. Whilst managers and employers in general do not like to admit defeat, sometimes they need to accept that external skills, a fresh approach, is the answer.

 

If an employer really wants to contain matters and avoid a costly and lengthy employment tribunal process, they will accept advice from external, independent, experts. The ACAS ‘Conciliation Explained’ May 2018, states;

 

  • There is no obligation to have a legal (or other) representative if taking part in early conciliation or making a tribunal claim.

  • A representative is someone of your choosing. This could include (not exclusively it seems) a trade union official, a lawyer or someone from a Law Centre of Citizens Advice Bureau’.

 

Simply, a nominated representative is someone the employee chooses for themselves. Anyone can be the employee’s ‘nominated representative’. This includes anyone with conflict resolution, mediation and settlement negotiation skills, including a Claims Management organisation that specialise in conflict resolution. Importantly, the nominated representative does not have to be Trade Union Representative. A lot of employers are not aware of this.

In House Grievance & Disciplinary

In respect of the in-house grievance or disciplinary dispute process, most workplace policies say;

 

‘During the formal stage of a Grievance or Disciplinary procedure the employee will have the right to be accompanied by a workplace colleague or trade union official’

 

Let us be clear, the ACAS Conciliation Explained document does not say your employer must allow someone other than a colleague or trade union official accompany you at meetings. However, an employee can reasonably ask their employer to recognise their chosen nominated representative, and allow that person in to meetings. An employee is advised to put this request in writing.

 

  • This is a reasonable request. Ultimately, the decision will rest with the employer though.

  • A reasonable employer will allow an employee to decide who their nominated representative is and they would respect that choice.

  • A reasonable employer will show flexibility.

  • A reasonable employer should not refuse to engage with an employee’s nominated representative in subsequent conciliation talks, especially if in-house procedures have been exhausted and the employee in question wanted to explore alternative dispute resolution processes, such as a without prejudice settlement agreement approach.

  • A reasonable employer would not refuse to engage with an employee’s nominated representative where it is clear from the outset that the working relationship has broken down and the two (employee and employer) wish to part company amicably on a no blame basis.

 

This is good news for any employee who is not a member of a Union.

 

It is also good news for the employee who feels that their Union Representative is in a conflict of interest (ie: working for the same employer), and/or is struggling to achieve a positive outcome for both the employee and the employer.

 

If you are unable to resolve your dispute with your employer through the in-house grievance or disciplinary processes (Stages 1 & 2) or if at any time during that process you want to engage in conciliation, typically a Without Prejudice process (ie: off the record talks) you can instruct someone who specialises in Conflict Resolution and conciliation services to handle that for you.

 

That person does not have to be a Union Representative.

 

Further, if an employee loses confidence in a Union, they can ‘at any time’ seek a second opinion from a nominated person who specialises in this specialist area of work and that may be a firm who specialises in conciliation services – such as Settlement Agreement services. For further information about the Conciliation process, see ‘Conciliation Explained’ a document found on the ACAS website.

acas - Conciliation Explained

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©️ The National Bullying Helpline 2019

CALL 0845 22 55 787

Call Charges: 0845 calls are charged at circa 7p per minute plus your telecom providers access charges. We do not receive revenue from inbound calls and nor do we profit from calls.