Dealing with members' issues

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Rep Zone
13 February 2017
Some commonly posed queries by members dealing with this element of being an ATL rep.

Grievances and disciplinary

What is a grievance?

A grievance is basically any work-related complaint that a worker, or group of workers, feels their employer has a duty to resolve. While this is a very broad definition, grievances are often linked to poor working relationships, imposed changes to working arrangements, and health and safety matters.

A member has asked me to go to a meeting with them. What should I do?

First of all you need to know what the purpose of the meeting is. 

Is it a grievance or disciplinary matter? If the meeting relates to a grievance matter or where a disciplinary sanction might be given, members have the legal right to be accompanied by their ATL rep. The member should have been given sufficient advance notice of the meeting for him to arrange representation. If this has not happened then a postponement to the meeting should be sought with whoever has called the meeting. The member should try to arrange this in the first instance, although you may have to become involved if he is having problems doing this.

If it isn't a disciplinary or grievance hearing. If the meeting does not relate to either a disciplinary or grievance matter, there is no legal right for you to be there. However, many workplaces will allow representation at various kinds of meetings so you should check this with management.

What are the advantages of taking a collective grievance?

There are many advantages of taking a collective grievance:

  • Economies of scale: dealing with one grievance on the same issue is a more efficient use of your time and energy than pursuing several individual ones
  • Individual members might feel less exposed when part of a collective grievance than an individual one: this is particularly true if the grievance relates to another (more senior) member of staff
  • Strength in numbers: an employer is less likely to ignore an issue if there is widespread unrest about it
  • Negotiation: it can force an employer back round the negotiating table.

What do I need to know if a member wants to take out a grievance?

One of the key roles you have as an ATL rep is helping members settle any grievances that have arisen at work. It is important you have a clear idea of what this entails, including advising if and when use of the grievance procedure is necessary.

Do grievance procedures cover bullying and harassment?

Not necessarily. Many schools and colleges will have separate procedures to deal with bullying and harassment complaints, particularly in the maintained sector. Check your staff handbook to see if your employer has one. 

Where can I find a copy of the grievance procedure?

It will be useful for you to have a copy of your school or college's grievance procedure for reference. This can usually be found in the staff handbook. Copies of this should be kept in the school or college office or possibly on the staff intranet. In maintained schools a copy will also be available from the local authority HR department.

Do I always have to use the grievance procedure if a member has a complaint?

No. In most cases it is advisable to try to help the member resolve the issue informally before resorting to formal procedures. Sometimes a quiet word in someone's ear is all it takes. It is also worth noting that most grievance procedures make it explicit that attempts should have been made to resolve the issue informally before proceeding to the formal stages.

What if the member wants to progress straight to the formal procedure?

It is the member's prerogative to instigate the formal procedure if they so wish. They should be advised that, in bypassing the informal stage, they could be escalating what may be a low-level problem and potentially make matters worse for themselves.

In cases where there is the possibility for the case to progress to an employment tribunal, it is important the member is seen to have used the formal procedure.

If you have concerns about any legal aspect of the case you are dealing with or feel it should be handled by a more experienced caseworker, contact your branch secretary or ATL's member advisors at the London office during office hours.

What if I think the member doesn't have a grievance?

As a rep you will sometimes come across members who want you to pursue what seems to be a minor issue. There may also be the member who complains about anything and everything, and expects you to take action. Your role is to provide advice, support and representation as required; it is not to meet every demand placed on you by the member. In helping you decide what support you need to provide it is worth remembering the following.

  • What may seem like a minor issue could be very important to the member. Providing a listening ear and allowing the member to get whatever is bothering him or her off his or her chest can be enough, with no further action needed.
  • It is better to nip a minor issue in the bud than leave it until it becomes a bigger, more complex problem. Conversely, a complaint about a seemingly minor issue can be a symptom of a bigger workplace issue. For example, a member being aggrieved at being asked to carry out what seems like a reasonable request by his or her line manager could indicate there are workload or staffing problems, or that a working relationship has broken down.
  • The member should be specific about his or her grievance and be able to provide evidence to support it. This can be via emails, letters, minutes of meetings or witness statements.

If the member does not have any of these, you may have to advise him or her that such evidence needs to be collected before you can progress any further with the case.

Getting to the root of a problem and deciding what action needs to be taken (or not) is part and parcel of being a rep. This will come with experience and also with careful questioning of the member.

I have a member who wants to take a grievance out against the head. What do I do?

It is not unusual for a member of senior management to be the focus of a member's grievance. While this may be a perfectly justified course of action, there can be particular sensitivities about this because of the disparity in status and the continuation of the working relationship after the grievance has been heard (this might be difficult regardless of who 'wins').

As a rep you may also feel some discomfort about pursuing a case against your head or principal. If this is the case and your member wants to continue their grievance against a member of senior management, you may wish to seek further advice or refer the case to your branch secretary or ATL's member advisors at the London office.

Several members at my workplace are unhappy about the same issue. What should I do?

Reps do sometimes become aware that more than one member in the same school/faculty or department is dissatisfied about the same issue. This could relate to a health and safety matter, the conduct of a particular manager or the imposition of a new working practice. If this is the case, you may want to think about taking a collective grievance on behalf of the members.

Informal attempts to resolve a grievance have failed. What now?

You can help the member draft his or her grievance. The employer's procedure will normally require the employee to put the grievance in writing to a member of management, eg line manager. If the line manager is the subject of the grievance, the procedure should make it clear who else it should be sent to. 

The grievance should set out clearly all of the following:

  • the grounds for the grievance
  • the evidence in support of the grievance
  • the remedy sought.

The employer will then arrange a hearing date.

What happens at a grievance hearing?

This should be made clear in the employer's procedure. Certainly, the employee should have the right to be accompanied to the hearing by either a work colleague or trade union rep. If you are not available on the proposed date, an alternative date should be agreed. The relevant paperwork, including notes and evidence, should be circulated to all parties. 

At the meeting the employee or their rep will present the grievance and the remedy sought, and may call witnesses and/or refer to documents previously provided. The respondent (or their rep or companion) may question the employee. The chair of the hearing may also question the employee. It is important to remember that in your role as rep you can confer with and make general representations on behalf of the member but you cannot answer questions directly on their behalf. In short, if the member is asked a question it is he or she who will be expected to answer it and not you.

The respondent (or representative) will present the response to the grievance and may call witnesses and/or refer to documents previously provided. The employee (or his or her representative) may question the respondent. The chair of the hearing may also question the respondent.

When concluding the hearing, the respondent (or representative) will sum up their position. The employee (or representative) will sum up their argument. Both sides will then withdraw from the meeting and the chair will consider the arguments and reach a decision. The decision should be communicated in writing to both parties within a given period of time (eg 10 days).

What if the member disagrees with the chair's decision?

There should be a right of appeal, the details of which will be in the employer's grievance procedure. The appeal should be heard by someone different from the person who chaired the original hearing. Again, the employee has the right to be accompanied by either a colleague or trade union representative. Generally, the appeal will be on a specific area, which may include the following:

  • procedure – that procedural irregularities prejudiced the grievance decision
  • facts – that the facts do not support the decision or were misinterpreted or disregarded 
  • proposed action – that the proposed action is inappropriate given the circumstances of the case. 

After hearing the appeal the chair will notify the parties of his or her decision within a given time scale, eg 10 days. The chair's decision is normally final.

If you need any more assistance with handling a grievance, please contact ATL's London office.

What rights does a member have as a part-time worker?

Part-time workers are covered by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Under the terms of the regulations, part-time employees have the right to be treated no less favourably than full-time colleagues as regards the terms of their contract of employment, or by being subjected to any other detriment on the grounds of their part-time status, unless this can be 'objectively justified'.

What would count as 'objective justification'?

Less favourable treatment will only be justified on objective grounds if it can be found to be shown that the less favourable treatment is:

  • to achieve a legitimate objective, eg a genuine business objective
  • necessary to achieve that objective
  • an appropriate way to achieve the objective.

The definition of objective justification is not a simple one and as such it is advisable to contact the London office for further guidance if it is used as a reason for possible less favourable treatment by your employer.

A member wants to make a request for flexible working. What should I advise them to do?

To qualify for the statutory right to request flexible working, the member must:

  • have worked for the employer for 26 weeks continuously, prior to the application
  • have a distance of 12 months between the present application and any previous application.

If the member meets this criteria, they will have the statutory right to make a request provided they:

  • have a child under 17
  • have a disabled child under 18 who receives disability living allowance (DLA)
  • is the parent/guardian/special guardian/foster parent/private foster carer, or the holder of a residence order or the spouse, partner or civil partner of one of these and is applying to care for the child
  • cares, or expects to care, for an adult who is a spouse, partner, civil partner or relative, or an adult who, although no relation, lives at the same address.

Can a part-time member be automatically selected for redundancy ahead of any full-time colleagues?

No. This would be contrary to the above regulations.

Our school has refused a member's request for flexible working. Can they do that?

An employer can reject an application for flexible working if they feel it would place too much of a burden on the school or college.

There are eight statutory reasons for refusal that can be given:

  • burden of additional costs
  • detrimental effect on ability to meet customer (pupil/parent) demand
  • inability to reorganise work among existing staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work
  • inability to recruit additional staff
  • planned structural change.

Some employers give non-specific reasons for rejecting applications, eg it is 'not convenient' or there are 'too many' part-time staff. These are too general (and the latter potentially discriminatory) and an employer should be pressed to state how their reason(s) match any of the above criteria.

Advise the member that he or she has 14 days in which to lodge an internal appeal. If that is unsuccessful, employees can bring a claim to an employment tribunal but only if the employer failed to follow the procedures laid down in the Flexible Working Regulations, has rejected the request on impermissible grounds, or the refusal is based on incorrect facts.

How can I support a member through capability procedures?

Firstly, check your employer's written capability procedure. This will normally have an informal stage that encourages both sides to discuss any concerns and seek to resolve them without having to move to the formal stage.

However, if the member subsequently receives formal notification he is to be the subject of capability proceedings, the school or college may feel they have already tried the informal approach.

What should I do if the matter has become formal?

If, after the informal stage, the concerns remain and the school or college moves to the formal stage, the member has the right to be accompanied to related meetings by either a workplace colleague or trade union rep. The member may ask you to accompany them to such a meeting.

When meeting to discuss capability concerns it is important that any targets and support are agreed with, and not imposed on, the member. With this in mind it will be helpful if the member has an idea of what support and/or training he would find helpful prior to the meeting.

A member has been bullied or harrassed

The Advisory, Conciliation and Arbitration Service (ACAS) defines bullying as: "Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient."

Bullying is not a one-off event but a pattern of behaviour, which may occur over a short or long period.

A line manager keeps criticising a member in front of staff and students. Would this count as bullying behaviour?

Whilst colleagues will, from time to time, have professional disagreements, they should always treat each other with dignity and respect. A pattern of criticising a colleague in front of staff and students (particularly when the person criticising is in a position of authority) would count as unacceptable and bullying behaviour.

So how can I help?

Check if your school or college has a dignity at work or anti-bullying policy and encourage the member to act in accordance with it. A good policy will outline an initial informal stage in which the victim discusses her concerns with the colleague. Hopefully, the colleague will amend his or her behaviour and the relationship can continue on a more professional basis.

What if the informal stage doesn't work?

The member should be advised to consider following the policy to the next (formal) stage. Bullying can affect the victim's confidence and she may need your support to take matters forward.

Does ATL have any detailed guidance on workplace bullying?

Yes. A copy of our guidance Bullying at Work, can be downloaded from the ATL website or via the 'publications and resources' section of the ATL rep app.

A member has contacted me about an accident that happened at work. What are their rights?

In the event of all accidents or injuries at work (even seemingly minor ones) check the details are recorded in the accident book (all employers are legally obliged to have one). This should include the member's name, date and time the incident occurred, and a description of how the accident happened or injury was sustained.

Ask the member if anyone else witnessed the accident or was also affected (near misses should also be recorded in the accident book). Take their details and ask them if they would be willing to provide a witness statement for the member if required.

If the member is a teacher at a maintained school, the Burgundy Book makes clear that, should any absence arise out of an accident, injury or assault sustained while at work, the teacher will be entitled to full pay from the date of the accident, injury or assault up to the date of recovery, for a maximum of six calendar months. If the teacher is still absent after this time, the usual sick pay arrangements apply.

If the member works in any other type of educational establishment or is a support staff member, advise him to check the workplace sick pay policy to see what provisions there are in these circumstances. 

Check the employer is taking steps to remedy the cause of the accident. If this is not the case and there is an ongoing problem that needs to be addressed (the accident book can reveal patterns), you may need to use formal procedures to resolve the matter. This could be your grievance procedure but check your workplace health and safety policy in case there is a specific procedure for dealing with health and safety issues.

If you have an ATL health and safety rep in your workplace, check he or she has been informed of the accident or injury. Health and safety reps have many additional rights to investigate the causes of accidents and to negotiate with employers on health and safety matters. 

If there is no health and safety rep in the workplace, now might be the time to ask. As unfortunate as it might seem the aftermath of an accident can highlight the importance of health and safety in the workplace. 

A member has been referred to occupational health and doesn't want to go. Can they refuse?

Referrals to occupational health (OH) are usually made when there are concerns about an employee's sickness absence (either long-term absence or frequent short-term absences), or if the employer feels they need more information about an employee's medical condition.

While employees can refuse to attend any meeting with OH, ATL usually suggests they agree to the referral as recommendations can be made to their employer about how they should be supported during a return to work or while at work. These are usually referred to as reasonable adjustments.

Are there any timescales before a member should be referred to occupational health?

There are no legally laid down timescales before members should be referred to occupational health. However, you may wish to check your employer's sickness absence procedure to see if they are complying with any laid down time frames for referrals.

Can I represent the member at the occupational health meeting?

There is no legal right for trade union reps to accompany members to OH meetings. However, your employers' sickness absence procedure may allow the employee to be accompanied by another person.

If this is the case and your employer agrees you can have time off to attend then you may wish to accompany the member, particularly if she is at an advanced stage of the sickness absence procedure and/or has had a previously bad experience with OH.

Given that sensitive medical information may be discussed at the OH meeting you should ensure you have the member's consent to attend. She may feel more comfortable being accompanied by friend or member of the family at this stage.

Encourage the member to write down her key concerns, particularly if her illness is work related and what she feels her employer could do to support her, eg are there any adjustments the employer could make to her working environment, working hours, etc. Advise her to make this clear to the OH advisor.

Should the member see the OH report after it has been written?

Yes. The member has to give permission for medical information to be shared with the school/college. Often this consent is requested before the meeting and the report is sent directly to the employer. If possible the member should request to see the report before it is sent.

Regardless of whether the member sees the report before or after her employer, if she takes issue with its content, she must raise her concerns with OH. If OH refuses to change the report, you must ask for the member's written concerns to be appended to the document.

One of my members has had an allegation of physical assault and/or verbal abuse made against him. What should he do?

The member should write a full account of the alleged incident as soon as possible after the incident whilst it is fresh in his memory. Additionally, he should make reference to any witnesses who may have seen or heard what happened.

What sort of investigation could the member be subject to?

Schools/colleges are likely to deal with investigations under their own procedures in the first instance, but serious allegations are likely to lead to investigations by both the employer and the police. Additionally, some cases may require investigation by children's services.

Can the member have an ATL representative at meetings?

If an investigatory meeting is held, this will not by itself result in disciplinary action and as such there is no statutory right for an employee to be represented. However, it is considered good practice to allow an employee to be accompanied at this stage and many employers' disciplinary procedures will allow for and encourage this. If the investigation results in a disciplinary hearing, employees have a statutory right to be represented.

Could the member be suspended?

In some cases, such as where it is considered that there is a risk of harm to a child/student, the employer may suspend the employee until the case is resolved. The member should continue to receive full pay during suspension.

Can the member keep in touch with colleagues while on suspension?

The Department for Education states that social contact with colleagues and friends must not be prevented unless there is evidence to suggest such contact is likely to be prejudicial to the gathering and presentation of evidence. However, a suspension letter may specifically state that the member should not contact colleagues.

Will ATL provide a criminal solicitor if a member is required to attend a police interview?

Yes, you should advise the member to contact the London office and ask to speak to the legal and member services department who will arrange this.

What is the procedure if a member is off work due to sickness?

The employer should have a sickness absence policy and the member should act in accordance with it. The policy may require the member to ring in by a certain time in the morning. It should also state who should be contacted.

What happens if a member rings in late or doesn't ring in at all?

The member will need to explain why he or she rang in late, eg the member was admitted to hospital or was too ill to do so. If the member fails to ring in and doesn't have a good reason for not having done so, you should advise the member this may be regarded as an unauthorised absence, which could lead to disciplinary action or a loss of pay.

What should the member do if she is going to be off for more than one day?

The member will be expected to indicate how long she thinks she will be off, when she will next be in contact and what work she will have pending at the school or college. It depends on your workplace sickness policy what length of time off sick requires medical certification. You should check this and the member will need to make sure the employer receives this medical certification if she is off sick long enough for it to be required.

My employer has contacted one of my members to ask him to do marking whilst off sick. Does he have to agree to do so?

No. Staff should not carry out any work duties whilst off sick and should not be contacted without prior agreement.

What if the member is, for example, having an operation and will be on long-term sickness absence?

The member should inform the school or college as soon as possible. He or she may be asked to provide evidence of the upcoming operation and/or expected period of absence. He or she may also be expected to set work in advance of the absence. However, this should not add significantly to the member's existing workload

How often should teachers be observed?

ATL thinks there should never be more than three observations as part of performance appraisal. The number of observations should be agreed when objectives are set. Experienced teachers may need fewer observations. Classroom observations should be planned in advance and have a clear and agreed focus, connected to appraisal objectives. You should ensure the school has a clear statement in the appraisal policy as to the number of observations expected.

Who should observe teachers?

ATL believes only a qualified teacher with recent classroom experience should carry out observations. This will usually be the teacher's line manager or appraiser but if that person does not have the relevant experience, the headteacher may appoint another teacher to undertake observations.

How quickly should a member get feedback?

Oral feedback should be given within 24 hours of the observation and this should be a discussion about the lesson. Written feedback should follow within five working days and be evaluative, describing strengths and areas for development. Feedback should not be reduced simply to a number or grade.

Where feedback is not given promptly, this should be raised with the headteacher. The school's appraisal policy should detail when feedback will be given.

Senior management have been dropping in to lessons unannounced. Can they do this?

The head has a right to drop-in for quality assurance purposes but these should not be excessive and should not count towards performance management.

Although heads may wish to do unannounced inspections, ATL believes a timetable should be published to indicate when 'drop-ins' or 'learning walks' are likely to take place (eg 'this week there may be drop-ins into English lessons/KS4 classes').

Drop-ins and unannounced observations such as learning walks should be kept to a minimum. Information from appraisal observations should be used for management purposes.

We have been told that Ofsted requires the headteacher to undertake drop-ins. Is this correct?

Ofsted requires heads and managers to have a good understanding of the quality of teaching in their schools; it does not require a paper exercise of lesson grading. Properly organised appraisal, including classroom observation, serves this purpose better.

The school wishes to introduce a programme of observing other teachers for coaching and mentoring purposes. Is this allowable?

ATL strongly supports peer mentoring, observation and coaching as part of professionalism and CPD. This should be discussed as part of the appraisal objective-setting meeting.

One of my members is an NQT. Does all this apply?

NQTs have separate arrangements for their support and review; the appraisal arrangements do not apply. HLTAs and other support staff also fall outside of teachers' appraisal but ATL recommends that schools have in place systems to review and support their work.

A member has been told they are underperforming and that additional observations will be undertaken. Is this acceptable?

Where problems have been identified, additional observations may be needed but these must be alongside clear objectives and with proper support to improve. Where issues have been identified, the appraiser should discuss this with the teacher concerned and agree a programme of support which will help to address the issue.

When can a teacher resign?

In maintained schools in England and Wales a teacher can cease teaching at one of three dates during the year:

  • 30 April (resignation due by 28 February)
  • 31 August (resignation due by 31 May)
  • 31 December (resignation due by 31 October).

In all other schools the resignation dates should be outlined in the contract or school handbook.

A teacher has missed the resignation date but wishes to leave. Is that possible?

If a member has missed the resignation date but still wishes to leave, he or she should approach the headteacher. Schools do have the discretion to accept shorter notice periods. Unfortunately, if the headteacher does not allow the teacher to submit a late resignation, there is no further recourse as this is part of the contract.

A teacher wants to leave before the end of term. Is that possible?

If a member wishes to leave on a date other than at the end of term, he or she should approach the headteacher. Schools have the discretion to allow a teacher to leave at any date. Unfortunately, if the headteacher does not allow the teacher to submit a late resignation, there is no further recourse as this is part of the contract.

A teacher wants to leave at Easter to take up a new post. Can they?

As Easter moves each year there are particular issues around resigning as at 30 April. If the teacher is moving to a new school and the new school's summer starts before 30 April, the teacher must be allowed to take up the new post. The new school starts to pay the teacher from the start of the summer term.

A teacher wants to leave at Easter but is not taking up a new post. Can they?

As Easter moves each year there are particular issues around resigning as at 30 April. If the teacher is not taking up a new post the school can require the teacher to return to the school after the Easter holiday and work until 30 April.

It is possible for the school to allow the teacher to leave at the end of the Easter holiday. You should advise your member that he needs to be very clear in his resignation letter of the date he wishes to leave. ATL believes that teachers in this situation should be paid until the end of the Easter holiday but this will need to be agreed with the school. In some cases it may be possible to negotiate pay until 30 April without the teacher having to return after the Easter holiday but this is unusual.

A member has asked if they only has to attend one after school meeting a week. How should I advise them?

This depends on which sector the member works in, eg maintained, academy or independent and whether she is in a teaching or support staff role.

Teachers in the maintained sector - and those in academies that have been TUPE transferred from the maintained sector - have their conditions outlined in the School Teachers' Pay and Conditions Document (STPCD).

There is no specified number of after-school meetings that teachers covered by the STPCD can be directed to attend. Rather, heads can direct teachers to work 1265 hours each year (or pro-rata if part time) and this is likely to include some after school meetings. However, the head is obliged to ensure that teachers have a reasonable work-life balance and should take this into consideration when directing teachers to attend any after-school meetings. Certainly, ATL believes any after-school meetings should be kept to a minimum.

Teachers in the independent sector should check their contracts for information about after-school meetings. Again, ATL believes after-school meetings should be kept to a minimum.

Support staff members should also consult their contracts to see what after-school activities they can reasonably be directed to undertake.

I have a member with an enquiry about an issue that arose before they joined ATL. What is the ATL position?

ATL, in common with other trade unions, does not assist members with matters that arose before they joined.

What if the member disagrees and believes the issue is not pre-existing?

The member can submit his or her reasons and ask that the case is referred to the ATL Defence Committee. The Defence Committee is a body of elected members who meet six times a year to make decisions on cases which are referred to it by ATL's legal department. The chair of the Committee is empowered to make decisions between meetings, which are then reported back to the full committee for ratification

Is ATL insured against negligent advice from reps?

Yes. If a member was given the wrong advice by an ATL rep and suffered a detriment because of that advice, ATL are fully insured for any claims which might be taken against the union as a consequence.

A member has a query that I am unable to answer. What help is available to me?

You have several options. You can:

  • contact your local branch 
  • check out the information on our website, which includes publications and factsheets on a wide range of subjects including redundancy, bullying at work, job references and flexible orking
  • contact our team of member advisers in the London office

What if the member has been accused of assault and the police want to interview the member?

Either you or the member should contact the London office for guidance. When doing so, it would be helpful to have the member's membership number together with details of the allegation, the contact number of the police, the date and time of the interview and the station it is to be held at.