How to handle poor union representation: when to seek legal advice
Workplace disputes often bring about significant stress and confusion. During these difficult times, trade union representatives play a key role in providing support, ensuring that the rights and interests of union members are protected. However, mistakes can be made, and when a representative fails to meet certain standards, the consequences can be serious.
The duty of care
Trade unions owe a duty of care to their members in situations where the union assumes responsibility for assisting and representing them. A trade union representative is expected to possess considerable skill and expertise in industrial relations and employment rights. This includes knowledge of basic employment law, as well as the ability to negotiate effectively on behalf of the members.
The standard of care that unions are required to uphold involves providing reasonable skill and care when offering practical industrial relations and employment advice. Union representatives should have the necessary knowledge and experience to navigate negotiations that are in the best interest of the member they are representing.
Legal advice and representation
In many cases, union members rely on their unions for advice on how to protect their individual interests against their employers. This could include both formal and informal legal advice. The extent to which a member can demand such advice depends on the union’s rules, whether explicitly stated or implied. However, once the union offers advice, whether voluntarily or otherwise, it will generally owe a duty of care to the member.
This duty extends to the actions of union officials who represent members in legal proceedings. However, once a union instructs competent solicitors to represent the member in legal matters, the responsibility for legal advice and representation transitions to the solicitors, and the union’s duty is effectively transferred. In such cases, it is the solicitors who are expected to uphold the standard of care, and not the union itself.
Case law and emerging guidance
Though case law on the standard of care owed by trade unions is limited, some decisions offer guidance. For example, in the case of Langley v GMB, a refuse collector was suspended for speaking to the press about his employer’s decision on waste collection. The union, along with a law firm, provided advice, and the worker agreed to a settlement that ended his employment. Later, he argued that had the union advised him to reject the settlement, he could have either kept his job or filed a whistleblowing claim in an employment tribunal, which could have resulted in higher compensation.
In this case, the parties agreed that the union had a duty of care to the worker. The union had voluntarily assumed responsibility for advising and representing him, specifically concerning the suspension, investigation, and potential disciplinary proceedings. However, the court ultimately concluded that the union had provided reasonable advice regarding the potential tribunal claim, fulfilling its duty by offering sound guidance and strategy. The duty of the union representative is not the same as the duty that would be owed by a member’s lawyer. The trade union role is likely to involve advice, accompaniment or representation, which are often the activities of a lawyer but the role is not ‘quasi-legal’.
The court further noted that if a trade union was recognised and had experience of dealing with a particular employer this would be particularly valuable to its member by enabling it to “provide a level of insight that would not be available to a solicitor”.
The court noted that the duty would include a general understanding of employment, HR, and industrial relations issues, to be reasonably well informed about employment law in general terms, to have a reasonable level of skill and expertise in persuasion and negotiation, and to be able to provide strategic and tactical advice on how to seek to resolve a situation in the best interests of its member.
Collective bargaining and duty of care
Another area where the duty of care of a trade union can be questioned is during collective bargaining, when unions negotiate on behalf of a group of workers. In 2024 in Nistor v USDAW, the court accepted that any duty of care towards individual union members who might be disadvantaged by a collective agreement would contradict an equivalent duty of care towards members who would be advantaged. In collective bargaining, a trade union should act broadly in the interests of its members as a whole and in accordance with members’ wishes as evidenced in any ballot. However, it remains to be seen what the position would be if the complaint focused on the union failing to exercise reasonable care in negotiations that affected all relevant members. Such a claim may still be difficult unless a specific error or failure could be demonstrated.
How can we help?
If you think that your trade union has not represented you with the care and diligence you deserve you can take action. The consequences of inadequate representation can be significant. Seek independent legal advice to help you explore your options and to protect your interests. We can assess whether your union has failed in its duty of care and guide you through the process of holding them accountable. Contact us on 0800 652 8025 or send an enquiry.
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