Issues with my Union Rep - WWYD?

[Namechanged75]

I have been employed in my current place of work for over 20 years- always received excellent performance appraisals and had an excellent attendance record. Until now. I am currently facing disciplinary measures related to overpayment following a long term sickness absence (which followed a prolonged period of bullying from a new line manager).

Unfortunately my Trade Union rep has been very poor. I know he does this in a voluntary capacity (for which I am obviously grateful) and his job has been very pressured but it has been very difficult. He doesn’t answer calls or emails, doesn’t provide advice, he didn’t forward me the ToR and other correspondence from the investigation team nor did he pass on the final report until after the deadlines for me to reply.

Fortunately I managed to agree an extension on the final response but it has added to the pressure of an already difficult situation.

He has also responded to the bullying in a pretty dismissive and what I consider to be unprofessional way. It is not an understatement to say that the bullying was for me life changing - it left me suicidal and broken. Anyway it is done now and I need to see if I can rebuild my life.

I have a final disciplinary meeting coming up ( I could potentially loose my job) and have been nervous about a lot of things including him being my rep. I emailed the Trade Union to see if I might be able to be supported by someone else but they said no - that I should stick with him. They have said I could formally complain to the secretary general but I am unsure what to do. I think they are all pretty close and won’t look favourably on a complaint but I am scared that if I stick with him I may regret it. What would you do?

Ask the branch secretary to investigate your case and find a more suitable rep. In the meantime the onus is on your rep to prepare you for any such hearings.

I know those isn't what you asked, but if your employer overpaid you, how can you be disciplined for their error?

At this stage if you ditch the rep, your only option is a colleague, who will be possibly even less useful. I'm not clear who you spoke to in the union, but I would go to your regional office or local office and lay it out straight - you don't have confidence that he has time to properly support you and you want another rep. It isn't unusual, for many reasons, for people to ask for another rep, and it doesn't have to be a criticism. Unless the union is really tiny, I doubt the secretary general has a clue who individual lay reps are.

Thank you for your responses.

The disciplinary is quite complicated. I was off long term sick - I had a breakdown following a year of bullying (hospitalised after a suicide attempt etc). Initially work said I should have been more proactive in letting them know I was being overpaid. Medical reports show I wasn’t capable. They are now trying to say that I informed/sent in sick notes to the wrong line manager. I was on loan when I went off sick and continued to send sick notes to the line manager based in the organisation I was on loan to rather than my home organisation. Work are saying that this was the right thing to do initially but during my absence I should have started notifying my home organisation. I was unaware of this - no one wrote or called me to let me know - both line managers say they couldn’t get hold of me (although I’ve had the same address and phone number for over ten years, which they have no problem contacting me on now). Nor did they speak to one another - so supposedly one manager received my sick notes for a year and didn’t action them or inform the other organisation. All a mess.

With regards to the trade union. It is quite a small union so I think they do know each other. I went to the National rep to see if I could be represented by someone else. He advised that I stick with the current rep and said the only way to change was to make a formal complaint to the secretary general. I’d rather not make a formal complaint but he’s not very helpful and I find him difficult to engage with knowing his odd views etc

Screw the union rep, hopefully you can afford to get yourself an employment lawyer asap. Check your insurance policy and see if you can get representation.

Thanks. I did want to consult an employment lawyer (I have never been involved in anything like this before so wanted to know options), but the trade union rep said if I do the trade union won’t represent me. In addition they advised that lawyers can’t get involved in internal disciplinary matters.

I think the fact the union rep passed on papers after the appeal deadline means you have more than enough evidence to complain to trade union and say you have lost faith in this rep and request someone else IF you have time to go through this process?

If you don’t have time can you arrange a phone call/ pre meeting with union rep to reassure you about the process/ what is coming up next? Explain after the delay you are anxious and want them to run you through likely scenarios and choices you will have?

That is correct.

Setting aside the bullying, because that is another issue, I'm struggling to comprehend the employers position. Not least because I can't believe they'd want to try to defend that argument! I'm assuming that you are now on zero sick pay. Based on what you are saying, if that's all there is to it it sounds like they are making a very kack-handed attempt to force you out.

To be honest, I'm not sure what to advise, because surrendering your union entitlement is not a step to take lightly. And unless you have legal insurance, I wouldn't recommend a lawyer unless you have absolutely no other option - no win, no fee is not a way to go that I'd recommend, and you can't afford the fees. At least for now you may be best sticking with the rep, although it isn't ideal.

Thank you for your responses.

I think you may be right and they may be trying to force me out- the argument feels weak/odd , and they have informed Occ Health there are no posts for me to return to. I think from the investigation report, whilst it isn’t explicit, it is clear that they also haven’t managed the situation very well and want someone to blame.

The trade union rep has suggested that I agree with the recommendation of the investigation - that I plead guilty to gross misconduct for not informing my home organisation I was off sick. I am reluctant to do this as it’s not true - I did inform my manger in the loan organisation , as per the loan agreement. I was never informed that I also needed to also inform the Home organisation. My rep has said he thinks I will ‘just’ get a final written warning. I think he honestly just can’t be bothered/ doesn’t have time - he has a very pressurised job and simply doesn’t have the time for a complicated case. I just don’t know whether him being there is more of a risk than it is worth?

As a union rep myself I can't tell you what to do. But I know what is do if it were my union rep. You have not committed gross misconduct - unless of course there is something you haven't told us. I'd be damned if I'd say I was guilty. And I'd take it to the tribunal if they sacked me. But possibly, and I'm speculating so please don't take this as gospel, he knows or suspects their strategy. Give a final warning and they only have to " get you" on the smallest possible thing to fairly dismiss you. It's the dismissal bit that tribunals look at. Not the preceding ruin up. So you only have to be guilty of the last thing, and any motivated employer can find that thing.

My personal inclination is to damn them all to hell and fight to the last person standing. But that takes nerve, confidence, resilience and a whole lot of other things that many people have not got or have run out of. But honestly, if your union is this chap, maybe I'd go against my normal advice and see a lawyer. You don't have to tell the union just to get advice.

An option is a compromise agreement or settlement agreement

www.acas.org.uk/settlement-agreements
www.ms-solicitors.co.uk/employee/settlement-agreements/factsheet-settlement-agreement-advice-for-employees/

My concern about that is why the hell the employer didn't think of that. Regardless of any issues, someone had been off on long term sickness and they have no suitable employment to offer if they wanted to come back. Redundancy or a settlement are the obvious choices for the employer, never mind the employee. So I wonder why it hasn't been suggested already.

Yes friends/family have said they may have offered redundancy - but no suggestion. My last performance mark was ‘exceptional’ so was advised that means they don’t normally offer redundancy. Who knows?

There isn’t anything I haven’t already mentioned. They knew I had a history of depression. Was bullied for over a year, reported it to HR but nothing was done. Went off sick with stress and depression- it was really bad. I attempted suicide. Informed my loan Manager, sent in sick notes etc. overpaid. Referred to occ health - referral said no posts were available. They launched an investigation into sickness absence and overpayment. This concluded that half way through my absence I should have informed my home organisation (I honestly would have done if someone had told me, nothing to be gained by not, - I was unaware that I needed to and unwell at the time). Now facing gross misconduct charges.

I have emailed the union about getting a different rep. I just can’t agree to something that isn’t true- I did inform my line manager and given they knew my health issues if I should have informed someone else I think it’s not unreasonable to think they could have told me or liaised with the other organisation?

I would rather not do anything to annoy the Union (by seeking legal advice). Shall wait and see what happens.

Thank you for all the advice - I am very grateful.

I do believe you. I'm just finding it incomprehensible that they are pursuing what appears to be a disastrously dangerous strategy. If it were just the process for sickness absence, that I could understand. With the best will in the world, if someone had been off a long time, no matter why, eventually the employer must draw a line under it. And dismissal on those grounds would almost always be deemed fair in law, and not redundancy.

It is the overkill with the fit note stuff that makes no sense. It's irrelevant to good grounds to terminate your employment on capacity. They don't have to have another job - you have one but you won't return to it (not saying you should, simply stating the legal view). The overkill suggests another agenda.

This probably is going to go down like a lead balloon, but have you considered saying that you wish to go back to the job you are loaned to and raise a bullying grievance? Call their bluff?

You said you reported it to HR. Did you raise a grievance or not? You said nothing was done - what exactly did that mean?

And what sector do you work in? I have a sneaking suspicion I can guess based on what you said about the union, but I'd also like to know which union. PM me that if you don't want to say and I won't repeat it.

How did it go today OP?

Thank you for your replies. I emailed the union yesterday but haven't heard anything back so far. Everything does seem to take a while. All very stressful but I'm just trying to get on with it.

I have said I would be willing to be posted anywhere (it was the line manager who said when I was off sick that I couldn't return to that post so I had nowhere to go)- I was just keen to have a phased return if possible. I did raise a grievance at the time of the bullying - I am not fully sure why it took HR so long to act/they didn't do more although I am aware of other HR issues within the team and there were some wider 'political' matters.

This sounds so stressful. Are you any further forward?

Thank you for your response. No I haven’t heard anything back yet - have been checking my emails hourly : it is as you say very stressful. Am sure I will hear soon.

Pick up the phone and speak to them. Don't take no for an answer.

In education ( in a local authority school) you would have to pay the overpayment money back- even if it was the employer's fault and however long it took.

If you are saying you would have informed another line manager about your sickness absence if you had known that was what they wanted, how can you argue that you were incapable of informing the company you were being overpaid? Not trying to sound difficult, just wondering.

What does the employers policy say about sicknotes and notification? I think that might be quite relevant to your case ?

The OP had a complete breakdown and attempted suicide. Perhaps watching their bank account wasn't high on the list of priorities? The OP had never said they wouldn't pay back any overpayment. They were seconded from one organisation to another, notified the line manager where they were working, and it was them that failed to notify the original organisation. As the OP had said, both the original line manager and the new line manager had contact details - address, email and phone - and claimed they couldn't contact the OP. It's not hard to write a letter. Or an email. Or phone someone.

Thank you for your responses. I am grateful.

I have always said I am, of course, willing to repay any overpayment. The organisation hasn't been willing to discuss that so far- I assume until the disciplinary process is complete? I haven't been through anything like this before so am unsure exactly - but assume that is the reason why.

As has been said , I did notify my line manager in the organisation I was on loan to as soon as soon as I went off sick -and I sent them sick notes as per normal policy. I suppose the issue for them is when my loan should have come to an end - the loan agreement for that post hadn't yet been issued which is arguably why there may be different viewpoints?

Unfortunately as I was on leave my mental health deteriorated further and I broke down / attempted suicide. My ill health coincided with lock down where I was completely alone, with no one to bubble with , get any help or support from (the disabled family member who I cared for died during this time). I genuinely wasn't thinking about anything, I was very unwell and attempted suicide.

I like to think that if I had been prompted to do something eg inform someone else of my absence or it had been brought to my attention that I had ben overpaid I may have acted - but as a pp has said I can't know for sure that I would have done and no one did contact me. They knew I was off work and why, that I lived alone and was struggling but nothing. Please don't think this is a pitty party - it genuinely isn't. I know that actions/ill health has consequences. II have been overpaid and will need to pay it back.

this is really employer-dependent. I would hunt down your department’s policies on how loans are handled. I would have thought that all your Loan Manager needed to do is email your Original Dept. Manager to inform them of the situation. Or sought advice from a HR business partner who would have given them some guidance. At what point were you released from your loan and was this communicated to you? I would have thought the Loan Manager would have told you to stop sending them emails and to message X manager in Original Dept instead.

Thanks. I think the issues have arisen in part because my loan manager didn't inform the organisation I was on loan from, nor did they action their own HR systems to say I was sick so I didn't go onto half or nil pay. When I worked with them they were very dismissive of HR/Finance issues etc I used to do them for the rest of the team and they didn't appreciate how time consuming such matters are. Obviously I couldn't action my own sick leave.

When I was off sick they did telephone and say that I should return to the original organisation when I came back (nothing in writing). In the meantime I continued to send them sick notes but it appears they didn't action them or forward them onto /my original organisation. I didn't know this until recently.