Union representation - legal assistance

[inline66]

I joined a union at the time I was in dispute with my employer. I was dismissed on the grounds of medical incapability approx 10 weeks after joining the union. I went to an appeal but this was dismissed approx 14 weeks after joining the union.

I have asked the union for legal assistance. However I have been advised by the local rep that I do not qualify as I had not been in the union for 13 weeks before the incident.

However, the relevant union rule states

“The member must have been in membership of the union for at least 13 weeks prior to the member knowing that she/he had need of legal assistance and seeks legal assistance from the Union”.

I note that this rule does not disqualify members for legal assistance for issues arising prior to or in the first 13 weeks of membership. A member is only disqualified if they knew they needed legal assistance and sought legal assistance prior to or in the first 13 weeks of membership. I did neither.

I pursued a negotiated solution up until the end and did not seek legal assistance until the 14th week.

I sympathize with the unions position but I do not make the rules.

Any advice on how to progress this with the union.

Their rulebook doesn’t even seem to have a grievance procedure.:o

[Rooster-UK]

It is not possible to form an opinion from one sentence taken from the union rule book.

There will be other parts that will qualify that sentence and to pick one bit that you believe favours your argument and ignoring the rest, I think, is clutching at straws.

We would need to see the whole document to give a definitive opinion.

 

But in my opinion, I think that the union rep was correct in what he said.

 

Regards. Rooster.

[inline66]

Thankyou for your response, I appreciate a second opinion

The only other rule which would seem to be applicable is as follows:

The National Executive Council shall have the power in its absolute discretion to grant legal

assistance to members who qualify .. in respect of:

(i) injuries or any other matter requiring legal assistance arising out of or in the course of their

employment, or in proceeding to or from their place of employment, or whilst on Union duties

or injuries arising out of a non work related matter

(ii) in exceptional circumstances any other matter

However the union are not relying on this rule. The union are relying on the rule in my first post to disqualify me from legal assistance.

In my opinion if the union had wanted to exclude members from legal assistance for issues arising prior to or in the first 13 weeks of membership then they could have done so quite easily by appropriately wording their rules. I believe that contra proferentem would apply.

However, my issue in the first instance is how do I progress this with the union. I have asked the local union rep to look at the issue and they said they will discuss it at the next meeting. If this is not successful then what negotiated options are available to me?

[OrangePrimate]

Hi there, sorry you have been dismissed, and for the situation you find yourself in but im going to respond negatively to your post!

 

This rule is a standard of all Unions, and it is there for a reason!

 

many people are not prepared to join a Union and pay the monthly subs like their collegues and will only join a Union once they know they are going to need help or representation.

banking on the expertise of trained people with quite a bit more than just the basic knowledge of Employment issues etc, utilising what would be, if done privately, an expensive process.

 

That is why the Unions state that a person has to be a member at least 3 months (that is why it is 13 weeks) before being offered this potentially very expensive (to the Union) legal cover for free.

 

The very first line of your post "I joined a union at the time I was in dispute with my employer" is exactly why this rule is in place.

 

Dont just join a Union at the last minute with the aim of getting free legal cover. I would suspect that Union members of many years standing would be a little upset that the subs they have paid in over the years were going to be used in this way by someone who only joined and paid the minimum into it because they were in deep water!!

And, it was obviously something you would have known was on the cards because Medical capability is not an instant situation to get to, it is over a period of time.

 

Also should point out that if a claim was to go to tribunal, the date of any claim (has to be within 3 mnths) would be from the date of dimissal, NOT the appeal. so the Union would also go by that date - only 10 weeks after joining.

 

The other rule you have posted is ref being injured in course of your work, traveling to/from work or in case of carrying out Union Duties, so would not apply in this case at all.

 

majority of Unions will also have in their rule book that the legal representation isnt guaranteed. for obvious reasons!! Out of interest, did you have the Union rep in with you at the dismissal stage and/or at the appeal?

[inline66]

Thanks for your response. Don’t be concerned about a negative response as I am looking for alternative opinions to act as a sounding board.

You made a good point with regard to the appeal date/dismissal date and I will explain in a moment why I think it was a good point.

In my opinion your other points were neither here nor there.

The relationship between myself and the union is contractual only

The problem is one of interpretation of the contract and therefore one of construction

In my opinion the two relevant clauses are the clauses I have copied above (In your post you copied and read the second clause incorrectly)

At the moment because the union are relying on only one of the clauses the issue is the interpretation of this clause alone.

“The member must have been in membership of the union for at least 13 weeks prior to the member knowing that she/he had need of legal assistance and seeks legal assistance from the Union”.

The clause requires two point be true in order to disqualify a member from legal assistance 1) member knew that he needed legal assistance and 2) member sought legal assistance. The wording would lend one to believe that both conditions have to be true in order to disqualify a member from legal assistance.

No doubt the union (and you) would rely on the belief that I knew I needed legal assistance prior to or within the first 13 weeks of membership. You made a good point in that after the dismissal I was free at this point to make a claim to an employment tribunal. I understand the power of your argument. However, as a matter of fact I did not make a compliant to an employment tribunal. I sought a negotiated solution only, during the first 14 weeks of membership. With regard to the second point I did not seek legal assistance until the 14th week as a result of hearing that that appeal of dismissal was rejected on the 14th week. The second point alone would negate the clause being applicable.

Your emotive interpretation is out of place…it is a contractual issue. Not doubt you feel the same outrage when an insured person with car insurance or home insurance has a crash or is burgled on the first day of insurance cover and makes a claim just after joining. That’s the way insurance goes.

[cal37]

Hi,

You can bet your life there is a clause sating that assistance is not guaranteed, it is in my union and its there for just the reason you state.

[Guest Old_andrew2018]

Hi

 

I expect the union will continue to rely on the rule/s you state, and may claim the process of the dispute through to its conclusion is one in the same.

I’m not sure what useful advice you can expect to receive, as you state your argument is based on a differing in interpretation of those rules, people will either agree with your view or that of the unions.

Sadly I have personal experience of a colleague who was informed that they were to face a disciplinary investigation, they joined the union then went sick, as a result they did not face any action until after the qualifying period.

They were unable to rely on union support, the arguement they relied on was the first meeting was after qualifying period, the unions was the process began with a letter being recieved.

From a personal point I empathised with them, however I am also aware that they had an opportunity to join when they commenced their employment and at any time afterwards.

The view I hold is similar to that of OrangePrimate, in that people often join a union because a need has arisen for advice/support,

The question I would like to put to you is how long were you in post before you joined the union, and can you say that dispute as you have called it to your dismissal was not a continual process, I suspect you knew you needed you support when you applied for membership of that union.

If it’s a question of interpretation are you prepared to challenge this in a court.

 

Regards

 

Andy

[advisee]

I suggest that you get a private solicitor to progress action against this employer, then perhaps consider an action against the union for breach of duty of care. Remember you only have three months.

[Guest Old_andrew2018]

I suggest that you get a private solicitor to progress action against this employer, then perhaps consider an action against the union for breach of duty of care. Remember you only have three months.

 

This is good advice from advisee an apt name, I think you will have to see a solicitor and decide with them chances of success

 

Regards

 

Andy

[paulgmb]

I can't see why you are attacking the Union, it is the employer that dismissed you!

 

Most Unions will not provide support or representation on pre existing problems for the reason they would not exist if everyone had the attitude that they would only join once they had a problem!

 

You mention that if you have an accident or get burgled the day after your insurance started thats the way it goes, but you were already in dispute with your employer and no one will insure you the day after an accident or break in.

 

I would concentrate your efforts on trying to get some compensation from your employer if you feel you have been treated unfairly.

[Guest Old_andrew2018]

Hi

 

Any news

[inline66]

Hi

 

I completed my ET1 recently so I've been quite busy.

 

I decided not progress the issue with the Trade Union. However, I did get a nice letter from them which said that they were considering removing the 13 week memebership requirement for legal assistance.