English v UNISON, IDS Brief 668, Rhyl County Court
Unions have the finite resources with which to advance the collective interests of their members and pursue the union's objects. No union can represent every single member in every case against an employer. There cannot be an absolute obligation to represent in all cases nor an absolute entitlement to representation.
Increasingly members are bringing cases against unions complaining about decisions not to represent them. Sometimes the claimants allege discrimination. Sometimes they allege breach of contract by reference to the rules. There have even been challenges to the very principle of a union's discretion not to provide representation in cases where there is a less than fifty per cent chance of success.
Union rule books tend to be phrased in a way which reflects the discretionary nature of representation. Many unions will not generally provide representation where the issue concerned arose before the person became a member.
It is all the more surprising in this context that a County Court judge found that a union had a contractual duty to provide representation, subject to certain qualifications.
The union's rule book gave rise to no such right. However, the judge focussed on a phrase in a guide sent to members along with the rule book which said "if management want to have any meetings or interviews with you about the disciplinary action it is your right to have a Unison representative with you, so make sure you do".
Not surprisingly the union argued that this should be given its obvious meaning. The worker had a right to insist his employer allowed his union representative to attend. It did not mean that the worker had a right as against the union to insist that the representative attended.
Amazingly, the judge decided that although the guide as a whole was not capable of being contractually binding, this part of the guide was and the phrase should be interpreted as giving the member a contractual right to be represented by the union.
The judge did say that this was not absolute, but that the member had a right to representation unless in all the circumstances it would be unreasonable. The case was then settled so the judge never went on to decide whether the refusal to represent because the case had no merit was reasonable in the circumstances.
This is only a County Court decision. It is not binding. Nonetheless it is a timely reminder of the need to emphasise the discretionary nature of legal and other representation for union members. This is particularly important with the extension of statutory rights, for example the right to be accompanied at a discipline or grievance hearing. This gives a union member the right to insist the employer allows the union representative to attend, but not the right to insist that the union provides a representative.