Dp has been refused union representation tomorrow

[ethelb]

Just a quick q as it's urgent. DP has just been handed a letter saying he has an official probation review meeting tomorrow with hr and the outcome could be dismissal. This follows his probation being extended. He expects to be dismissed but wants representation to make sure he is bring told the right thing.
However they have said no representation as he has been working less than a year. Is that right?

No, not right, but was it the company who said he can't have representation or the union? Someone could be confused about him not being employed for a year though?

That's bull. The union might not be able to stop him from being sacked as he has worked there less than a year but you are allowed to take somebody in with you (a union representative or a colleague) to any meeting that is for disciplinary purposes.

It was the company. Union are currently looking into it and we are waiting for them to get back to us. Any law we can quote at company?

"If you have been invited to an internal disciplinary or grievance meeting you have the legal right to take with you a colleague or trade union representative to that meeting, as enshrined for in the Employment Relations Act 1999 s.10"

Thanks Alexander. They are claiming it is not disciplinary or a grievance meeting. Very bad form of them and really not what we need.

if the outcome is possible dismissal, then this is definitely disciplinary and the ERA is engaged as alexander quotes above..

Thanks. The union have siad he does have a right to representation and we have just sent over all his paperwork regarding his employment and probabtionary period for them to prepare to advise and represent him. There's loads of irregularities we have just found in it all as well which make the whole thing even more confusing.

Is it then within your DP's right to refuse the meeting until appropriate representation can be gained? Could some wise soul answer this?

I could be wise, if the above is the case, to insist on a deferment. Good luck OP and partner, I know how stressful it can be, but I do think "due process" must be followed.

Although he is entitled under the ERA to representation, he has no redress if they don't allow it.

If someone with longer service was dismissed without representation, the claim would be unfair dismissal. He has no right to claim unfair dismissal this early in his employment.

His employer can dismiss him without a hearing and without even giving a reason if they choose, so I wouldn't advise launching in heavy-handed talking about his rights. His rights are very very limited at this stage.

There are exceptions to the above, if he is dismissed for discriminatory reasons, or for exercising one of his statutory rights.

@flowery that's kind of what I was expecting. Though wierdly his contract says they have to give him 2 weeks notice under his probation.

Though it is odd that he has a right, which he has no right to enforce no?

He's still entitled to whatever notice (or pay in lieu of notice) is in his contract, that's not affected. Not paying him notice would be wrongful dismissal, which is a different legal claim, and one he could make from day one.

Technically, if he is contractually entitled to a hearing and representation, he could bring a claim of breach of contract, and if successful, be entitled to compensation, but this would be limited to actual financial loss, and if he is given the right notice, there would be no loss incurred as a result of not being allowed to bring his union rep.

It's a fair point about having no recourse if the company refuses, and hadn't considered that aspect as my experience with HR people is that for the most part they want to get the procedural aspect right and usually their mistakes aren't malicious, but more uninformed. But of course Flowery is right and the company could simply refuse.

The only part I don't quite understand is the part about his probation being extended which has somehow led to his potentially being dismissed?

Hope it goes well...

Hi company have now said they were mistaken and that dp can have representation. Now his work is playing silly buggers about confirming dates though.