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Wednesday, 3 October 2012

Business transfers and takeovers: employee representatives and elections

Workplace consultations about business transfers or takeovers normally happen through nominated employee representatives. If your workplace does not have a recognised trade union then you may need to elect the employee representatives. If you become an employee representative then your employment rights are protected.

Arrangements for elections

If the employee representatives need to be specially elected, your employer should:

  • make sure as far as possible that the election is fair
  • decide how many representatives need to be elected so that the interests of all the affected employees are represented (taking into account the number and level of those employees)
  • decide if all the affected employees should be represented as one workforce, or groups depending on the level of employee (eg manager, shop floor workers etc)
  • decide how long the employee representatives will need to be in place

The following conditions should also be met:

  • the candidates for employee representatives are employees affected by the business transfer or takeover on the date of the election
  • no employee affected by the business transfer or takeover is unreasonably excluded from standing for election
  • all employees affected by the business transfer or takeover are entitled to vote for the employee representatives
  • so far as possible, voting should be done in secret
  • the votes given must be accurately counted

You should be able to vote for as many candidates as your employer decided are needed to represent you. For example, if your employer has stated that there needs to be three employee representatives then you should be able to vote for three candidates.

If an employee representative leaves, or decides not to continue with the role, another election should be held to replace them.

Rights of employee representatives

Employee representatives and candidates for election have certain rights and protections which help to allow them to carry out their roles. These are essentially the same as the rights and protections of trade union members.

Employee representatives and candidates should have access to employees affected by the business transfer or takeover. They should also have appropriate access to accommodation and facilities (eg use of a telephone).

What is 'appropriate' will vary according to circumstances. For example, if there is one photocopier in an office, only allowing access for one hour a day might be reasonable. However, if there are five photocopiers that no one uses, it might not be reasonable.

An elected representative will be automatically unfairly dismissed if the reason, or the main reason, for their dismissal is because of their status or activities as an employee representative. An elected employee representative or candidate should also not suffer any other detriment (harm) because of their status or activities (eg having their hours reduced). 

If an Employment Tribunal finds that a dismissal was unfair, it may order the employer to reinstate or re-engage the employee or make an appropriate award. If the Employment Tribunal finds that a representative or a candidate for election has suffered detriment short of dismissal it may order that compensation be paid.

An elected representative also has a right to reasonable time off with pay during normal working hours to carry out representative duties. Representatives should still be paid their normal pay while they are away from work.

What to do if you have problems

Acas (the Advisory, Conciliation and Arbitration Service) offers confidential help and advice on employment rights. Alternatively, you could contact your local Citizens Advice Bureau for help.

If you cannot resolve the problem with the employer informally, you may be able to make a complaint to an Employment Tribunal. You should be an elected or trade union representative and either:

  • feel the employer did not follow the information or consultation requirements
  • have been dismissed or suffered detriment (eg discriminated against) because of your role
  • have been unreasonably refused time off by your employer, or your employer has refused to pay you for the time off

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