Some unions and representatives are outstandingly good. However, sometimes you get bad advice and miss the opportunity to enforce your employment rights against your employer. We are often asked if a member can bring a claim against their trade union.
It is possible. There could be a contractual duty of care but more likely, the union and the representative could owe you a responsibility to exercise ordinary skill and care when advising or representing you in an employment dispute.
It can be relatively straightforward to identify a breach of duty by a union representative. This could be as simple as failing to advise you of the need to make a claim to the Employment Tribunal or notify Acas of a potential claim within the prescribed time limits. Missing a crucial date will usually be fatal to your chances of bringing a claim against your employer.
What does “ordinary care and skill” include?
Exercising “ordinary skill and care” would likely extend to being able to advise you correctly as to basic time limits in the Tribunal but a union representative is neither responsible nor competent to give complex advice – so there is unlikely to be a breach when asked something technical. “Ordinary skill and care” does not extend to having the knowledge or experience of a specialist employment law solicitor.
The duty of care would usually come to an end when the union representative instructs a solicitor for you…even if you give instructions to the solicitor through the union. The exception to this position may arise if the union fails to properly pass on your instructions to the solicitor.
If a union representative fails to advise a member seeking advice to bring a claim for unfair dismissal in the Employment Tribunal that the claim must be made to the Tribunal within 3 months of dismissal, the union is likely to be in breach of its duty. In these circumstances, there may be a claim for compensation against the union.
By contrast, a claim is unlikely to exist against a union in the same circumstances with the difference a solicitor is appointed to act for the member and it is the solicitor who fails to advise correctly as to the 3 month time limit. In such circumstance there is likely to be a claim against the solicitor.