Saundry 2011

Industrial Relations Journal 42:2, 195–211
ISSN 0019-8692
Discipline, representation and dispute

resolution—exploring the role of trade
unions and employee companions in
workplace discipline
Richard Saundry, Carol Jones and Valerie Antcliff
ABSTRACT irj_600 195..211
This article reports findings that suggest that trade union representation both protects
worker interest and also facilitates the informal resolution of disciplinary disputes.
However, this is dependent on robust representative structures and high-trust rela-
tionships with employers. Conversely, non-union companions were found to have no
substantive impact on disciplinary processes and outcomes.
1. INTRODUCTION
Defending employees against disciplinary action has long been a central function of
trade unions (TUs). Until the publication of the Donovan Report in 1968, workers
enjoyed limited employment rights and a minority of organisations had formal dis-
ciplinary procedures (Anderman, 1972). The presence of strong TUs, and the threat of
collective industrial sanctions, was therefore crucial in restraining managerial author-
ity and ensuring fairness and natural justice (Edwards, 2000; Purcell, 1981).
Since then, workplace discipline has been subject to increased workplace and
statutory regulation. During the 1980s and 1990s, the threat of litigation triggered the
spread of formal disciplinary procedures in both unionised and non-unionised work-
places (Cully et al., 1999). More recently, the Employment Relations Act 1999 gave all
employees a right to be accompanied by a TU representative or by a fellow employee
at disciplinary hearings, and in 2004 statutory dismissal procedures were introduced
through the Dispute Resolution Regulations 2004. The Gibbons Review (Gibbons,
2007) and the subsequent Employment Act 2008 arguably marked a sea change in
public policy and a shift towards increased flexibility and employer discretion in the
❒ Richard Saundry is Reader in International Employment Relations, Institute for Research into Organi-
sations, Work and Employment, Lancashire Business School, University of Central Lancashire, Carol
Jones is Lecturer in Human Resource Management, Institute for Research into Organisations, Work and
Employment, Lancashire Business School, University of Central Lancashire and Valerie Antcliff is
Research Associate, Centre for Enterprise, Manchester Metropolitan University. Correspondence should
be addressed to Richard Saundry, Reader in International Employment Relations, Institute for Research
into Organisations, Work and Employment, Lancashire Business School, University of Central Lancashire,
Preston, PR1 2HE; email: rasaundry@uclan.ac.uk; cjones7@uclan.ac.uk; v.antcliff@mmu.ac.uk
© 2011 The Author(s)

Industrial Relations Journal © 2011 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden, MA 02148, USA.
196 Richard Saundry et al.
management of workplace discipline. While Gibbons claimed that there was a need
for a greater emphasis on early dispute resolution, others have argued that recent
reforms have simply eroded employment protection (Sanders, 2008).
The removal of statutory compulsion could imply a more important role for
employee representatives in ensuring fairness and due process. However, accompani-
ment and representation was largely ignored by Gibbons (2007) and arguments from
the TUC (2007) for a strengthening of the right to accompaniment were disregarded
by the government. This attitude contrasts sharply with consistent survey evidence
that links strong TU organisation with lower rates of disciplinary sanctions and
dismissals (Antcliff and Saundry, 2009; Edwards, 1995; Knight and Latreille, 2000;
Saundry and Antcliff, 2006).
However, in recent years, there has been little detailed qualitative investigation
into the process and patterns of employee representation in individual employment
disputes (Dickens et al., 2005). This article begins to address this by drawing on data
from a series of case studies to address a number of key research questions. Firstly,
what role do companions and employee representatives play within both formal
and informal processes of workplace discipline? Secondly, what, if any, impact do
companions and employee representatives have on these processes and on disciplin-
ary outcomes? Thirdly, what factors shape the impact of accompaniment and
representation?
This article is organised as follows: firstly, we trace the development of policy in
relation to workplace discipline; secondly, the existing academic research in this area
is reviewed; the research methods used in the project are then briefly explained; we
then set out the findings of the project before drawing conclusions and outlining the
implications for policy and future research into this issue.
2. REPRESENTATION AND WORKPLACE DISCIPLINE

The policy developments outlined above reflect the dominant managerial conceptu-
alisation of workplace discipline as a linear technical process through which behav-
iour can be ‘corrected’ by the application of ‘fair’ and ‘just’ disciplinary procedures
(Edwards and Whitston, 1989). This contrasts with notions of discipline as a way to
maintain order through ‘punishment’ (Jones, 1961). However, the binary distinction
between corrective and punitive approaches underplays the complexity of workplace
discipline. Firstly, it discounts the possibility that different approaches may interrelate
or be used in tandem (Fenley, 1998; Rollinson, 1992; Rollinson et al., 1997). Secondly,
it focuses almost entirely on formal procedure while neglecting the informal processes
that influence disciplinary outcomes (Edwards, 2000). Finally, it ignores both the
centrality of power relations and management control (Mellish and Collis-Squires,
1976; Thomson and Murray, 1976).
The importance of disputes procedures as a management control mechanism has
been well established (Purcell and Earl, 1977; Thomson and Murray, 1976). However,
radical perspectives that see workplace discipline as the embodiment of managerial
domination fail to take into account the heterogeneity of management and the way in
which workplace discipline is shaped by a continuous negotiation and renegotiation
of order (Edwards, 2000). Instead a focus is needed on the way in which the relations
between key actors are played out within both formal (technical) procedures and
informal (relational) processes and, in turn, how these are shaped by key contextual
factors.
Industrial Relations Journal © 2011 Blackwell Publishing Ltd
Discipline, representation and dispute resolution 197
The role played by employee representatives reflects this complexity. Analysis of
large-scale survey data has consistently pointed to the importance of TU presence in
determining disciplinary outcomes. Millward et al. (1992) found dismissal rates two
and a half times higher in establishments in which unions were not recognised
while Knight and Latreille (2000) found that union density significantly moderated
disciplinary outcomes (see also Antcliff and Saundry, 2009). One explanation for
this is that unions restrain managerial prerogative and ‘punitive modes of discipline’
(Edwards, 1995; Moore et al., 2008) by protecting employees against unfairness and
providing a means through which rules and procedures are agreed thus minimising the
use of sanctions.
However, presenting TU representation in disciplinary issues as straightforward
resistance to managerial control is overly simplistic. Not only do unions largely
accept the need for discipline (Edwards, 1994), but they also play a role in promoting
self-discipline by warning members as to consequences of future conduct and they can
be reluctant to represent members guilty of serious misconduct (Batstone et al., 1977;
McCarthy, 1966; Saundry et al., 2008). Furthermore, the impact and nature of TU
representation is likely to depend on the nature and quality of their relationships with
managers. For example, high-trust relations may assist the early and informal reso-
lution of disputes (Oxenbridge and Brown, 2004). Edwards (2000) has also argued
that constructive relations between employers and unions can underpin formal
notions of discipline and the development of self-discipline. In contrast, where good
employer–union relations are absent, representatives may be more likely to adopt
adversarial approaches in defending members.
There is an inevitable tension between union representatives seeking to resolve
disputes and the need to fully represent members (Nicholson, 1976). In seeking to
settle issues informally and maintain relationships with management, TUs may be
seen as compromising the immediate interests of the member facing disciplinary
action. However, good employer–union relationships and strong TUs are not mutu-
ally exclusive. Only where union representatives provide the legitimate voice of their
members will management have an incentive to listen (Batstone et al., 1977).
Without the countervailing power offered by effective union representation,
workplace discipline may be reduced to a stark exercise of managerial discretion. This
is increasingly relevant given the growing diversity of representational forms and
the absence of any form of indirect representation in the majority of workplaces
(Charlwood and Terry, 2007). While there is evidence of isolated attempts to develop
roles for non-union employee representatives within discipline and grievance
processes, there are question marks over their impact (Podro et al., 2007). Indeed,
Charlwood and Terry’s (2007) analysis of Workplace Employment Relations Survey
(WERS) 2004 found that workplaces with non-union representatives (and no TU
presence) were likely to have higher dismissal rates. They concluded that effective
representation requires organisational cohesion and strength. Furthermore, there is
evidence to suggest that unrepresented workers find it particularly difficult to resolve
workplace problems and disputes (Pollert and Charlwood, 2008).
In part, the statutory right to accompaniment was a response to this problem.
However, data from WERS 2004 suggested that the application of the right to
accompaniment has been haphazard (Kersley et al., 2006; Saundry and Antcliff,
2006). In particular, around one in five workplaces did not allow companions to
ask questions in hearings. This was exacerbated by the limited knowledge amongst
employees of the basic detail of the provision (Casebourne et al., 2006). Even where
it was observed, Saundry and Antcliff (2006) found no evidence of more moderate
disciplinary outcomes.
Overall, the extant literature suggests that employee representation may play
a significant role in shaping disciplinary outcomes. However we know relatively
little about the way in which employee representatives and companions interact
with informal and formal disciplinary processes in contemporary workplaces.
This raises three main sets of questions. The first relates to the role of companions
and employee representatives within the disciplinary process: Is this role limited
to formal procedure or does it extend to informal processes? To what extent is it
shaped by the type of representation provided? The second examines the impact of
accompaniment and representation: Does accompaniment and/or representation
help to resolve potential disciplinary issues without the need for formal proceedings
and sanctions? Do companions or representatives affect the outcome of formal
disciplinary hearings? The third concerns the factors that shape the impact that
companions and representatives can make: What determines the impact of accom-
paniment and representation? Does strong TU organisation moderate disciplinary
outcomes and, if so, why?
3. METHODOLOGY AND RESEARCH DESIGN

This research was conducted within eight case-study sites, which reflected the need for
a methodological approach that exposes the social processes which underpin and shape
the complex reality of workplace dispute resolution (Dickens et al., 2005; Hyman,
1994). A case study method is not only well suited to studying ‘complex phenomena’
(Yin, 2003: 2) but also allows us to examine the links between processes of dispute
resolution and the dynamic contexts in which they are situated (Bryman, 1989).
Cases were selected as far as possible to provide a diverse range of contexts
and environments in terms of workplace size, ownership, industrial sector, workforce
composition and level of TU recognition and representation. A breakdown of the
sample is provided in Table 1. Precise details are not provided in order to protect the
confidentiality of respondent organisations.
All workplaces were located within the north of England. Cases A and B were large
private-sector manufacturing businesses. In these settings union density was very high
and workforces were largely male semi-skilled and skilled. Two mid-sized organisa-
tions were also selected, neither of which recognised TUs nor had any significant
TU presence. However, both organisations had employee consultative fora. In one
company (Case C), the workforce was predominantly female with a significant minor-
ity of UK Asian employees. In the other (Case D), the workforce was diverse both
in terms of gender, age and skill, with an increasing number of migrant workers.
Previous research has shown that public sector workplaces tend to have lower rates
of disciplinary sanctions and dismissals. We included two public sector organisations
(Cases E and F) within our sample. Both were relatively large employers and provid-
ers of public services. In both cases TUs were recognised with relatively high levels
of union membership. The final two cases were both smaller companies. One was
a provider of care (Case G): the workforce was largely female and relatively low
paid. As a service formally provided within the public sector, a significant number of
employees were TU members. However the company did not recognise TUs. The final
case (Case H) involved a small, family-owned retail business with a largely female
workforce and no known union members.
Table 1: Breakdown of sample
Size
Case (employment) Sector Representation Gender Ethnicity Skill Interviews
A 10,000+ Private—manufacturing TU recognised Largely male Largely white Semi-skilled, skilled HR manager
British Operational
managers (3)
TU representatives (2)
B 4,000+ Private—manufacturing TU recognised Largely male Largely white Semi-skilled, skilled HR manager
British Operational
managers (2)
TU representative
C 350–400 Private—retail No TU Diverse Significant Diverse—significant HR manager
recognition—low minority proportion low skill Operational manager
levels of TU of non-British Companion
membership Regional TU officer
D 300–350 Private—wholesale/retail No TU Largely female Diverse Diverse HR manager
recognition—low Operational manager
levels of TU Companion
membership
E 40,000+ Public—local authority TU recognised Diverse Some Diverse HR managers (2)
diversity TU representative
Operational manager
F 750–1,000 Public—transport TU recognised Diverse Largely white Diverse HR manager
British Operational manager
Discipline, representation and dispute resolution
TU representative
G 100–150 Private—personal care No TU Largely female Largely white Low skill HR manager
recognition—minority British Regional TU officer
union membership
H Under 25 Private—retail No TU presence Largely female Largely white Low skill Company owner
British Companion
199

In each case, interviews were conducted, where practicable, with the following: a
senior human resources (HR)/personnel manager with responsibility for disciplinary
issues; an operational manager with experience of chairing disciplinary hearings; and
a TU representative and/or employees who had acted as companions. In respect of the
two smallest companies, only one member of management was involved in dealing
with disciplinary issues. Consequently, only two interviews were conducted. In addi-
tion, further interviews were conducted with regional officers of TUs with experience
of representing members in disciplinary and grievance hearings in a wide variety of
settings. In total, 28 interviews were conducted, including: 8 HR managers; 9 opera-
tional managers; 10 TU representatives and companions; and 1 company owner. In
addition to the interview data, copies of disciplinary, grievance and related proce-
dures were requested from the respondent organisations.
It is important to note that interviews were not conducted with employees who
were, or had been, subject to disciplinary proceedings. This reflected both ethical
issues and access considerations. Given the sensitive and confidential nature of disci-
plinary proceedings, researchers agreed with subjects that they would not seek specific
details of individual cases and instead focus on their broader experiences of the
disciplinary process. Following initial discussions with respondent organisations
(both employers and TUs), the researchers considered that attempting to include
employees subject to discipline within the sample was problematic for a number of
reasons. Firstly, the examination of individual cases raised serious issues of confiden-
tiality for all respondents involved. Secondly, it was thought that employees who were
currently subject to disciplinary issues were unlikely to be willing to take part in the
research, due to fears that the results may impact on the disciplinary proceedings
against them. Thirdly, those employees who had been subject to disciplinary action
may also be unwilling to revisit these issues. Furthermore, access to such employees
would inevitably be skewed—specifically, those dismissed as a result of disciplinary
proceedings would be difficult to identify and contact. Nonetheless, the fact that the
views of employees subject to discipline were not examined within the research needs
to be borne in mind when considering the findings, analysis and conclusions outlined
below.
The majority of interviews lasted between 45 and 75 minutes. It is important
to note, however, that interviews with (non-union) companions tended to be much
shorter, due to a relative lack of involvement with broader disciplinary issues.
The interviews were semi-structured and gathered responses across a number of
key issues: background contextual information; the nature of formal procedures
and extent to which accompaniment and representation is provided; the nature
and extent of informal processes; the role of employee representatives within
informal processes; the nature of representation of accompaniment and representa-
tion within hearings; and the impact of representation and accompaniment on
outcomes.
Each interview was recorded (with the permission of the respondent) and then
transcribed. Transcripts were then sent to respondents who were asked to contact
the researchers if they required any amendments to be made. Interview data were then
analysed. Through comparison across the data set, key themes and patterns were
identified in relation to three broad headings: the role of union representatives and
companions; the impact of accompaniment and representation in both formal and
informal aspects of workplace discipline; and the key factors shaping the impact of
representation and accompaniment.
4. FINDINGS AND ANALYSIS
4.1 The context of discipline, representation and accompaniment

All organisations within the sample had well-established written disciplinary
procedures, which complied with the Acas Code of Practice on Disciplinary and
Grievance Procedures and provided for accompaniment in line with legislation. Pro-
cedures within public sector organisations were noticeably more detailed and complex
than in the private sector. In particular, disciplinary hearings tended to be adversarial
and quasi-judicial. Typically, the case against the employee would be made by a line
manager and cross-examination of witnesses was routine. In general, respondents
believed that the formality of the hearing was important in ensuring natural justice.
There was no evidence of cross-examination in any of the private sector organisations
within the sample.
Within both public and private sector, operational and HR managers claimed that
disciplinary procedures were corrective rather than punitive:
I don’t see it [disciplinary action] as a stick to beat somebody with unless it’s gross misconduct. . . . In
terms of things like absence management or performance management, I see it as a tool to change that
behaviour [HR Manager].
However, the way in which procedures were applied varied according to context and
the nature of the offence. Within unionised organisations, there was a greater focus
on using informal discussions to seek a resolution before the issue ‘went formal’.
Thereafter, unions tended to ensure that managers followed formal procedures
correctly. Respondents agreed that once formal procedures were enacted it was
generally difficult to avoid disciplinary sanctions. Informal resolutions were also less
likely in cases of alleged serious misconduct, where a more formal approach was seen
as appropriate.
In the non-union organisations within the sample, there was less scope for resolving
disciplinary disputes informally and consequently a greater reliance on procedure.
There were perhaps three explanations for this. Firstly, there was no third party with
whom to hold informal discussions. Therefore, if having ‘a quiet word’ with the
employee concerned was not successful, the only other recourse was formal action.
Secondly, in organisations where work was unskilled and labour easily replaced, there
was less incentive for managers to invest time in trying to resolve problems. Thirdly,
in smaller organisations, formal procedures were seen as important both in deperson-
alising disciplinary issues and in ensuring legal compliance.
Throughout the sample, there was evidence of a gradual drift towards greater
formality in the handling of disciplinary issues. This was seen as a direct result of an
enhanced perception amongst line managers of the threat of possible litigation. The
spectre of having to appear at an employment tribunal was a powerful deterrent from
departing from procedure. It was also pointed out that, in larger organisations, the
spread of business partner models meant that HR advisors were often remote from
the area of the organisation in which the issue was being managed. This tended to
result in a more formal approach to discipline. This was more pronounced where line
managers were inexperienced. Here there was a suggestion that the greater procedural
and legal knowledge possessed by HR advisors led some line managers to defer to
their expertise. There was also evidence of an increasingly formal approach to absence
issues with less scope for potential resolution and the strict application of trigger
points for warnings and subsequent dismissal. Even within unionised organisations,
respondents linked the development of a more performance-driven culture with a
more rigid application of procedure:
The disciplinary procedure is obviously used as the punishment, very often the big stick to beat people
with . . . the ‘right word at the right time’ attitude is there in the policy. It should be used really before
they move into the formal process. In my view it’s not used anywhere near enough [TU representative].
4.2 The role of union representatives and companions

Accompaniment within disciplinary processes varied considerably within the sample.
In unionised settings, union members were generally represented by lay officials such
as shop stewards; however, where there was no union recognition, full-time regional
officers would represent members where requested. Some non-union employees were
accompanied by work colleagues, although respondents claimed that the majority
declined accompaniment altogether. In the two organisations that had employee
consultative forums, there was no evidence that forum representatives were called
upon to accompany colleagues.
There was a marked contrast between the roles played by union representatives
and non-union companions. This was most evident in attempts to deal with
potential disciplinary issues informally. Here, non-union companions played no
part whatsoever. Conversely within unionised settings, representatives were routinely
involved at an early stage. Managers believed this helped to preserve union–employer
relationships and provided an ‘early warning system’ of emerging disputes. An opera-
tional manager explained that:
I’ve had first-hand experience of delicate issues of bullying going off in a department that the people
were not dealing with, but they spoke to the union rep, the union rep comes to see me as line manager
responsible for this area at the time, saying, ‘This is bubbling up, and so and so is getting upset about
it’. Then you can get engaged and avoid what would’ve been some serious allegations and issues.
In this sense the union facilitated the resolution of issues before they escalated. This
‘self-discipline’ was also evident in representatives following up cases to try to avoid
repeat behaviour and more serious disciplinary sanctions. An operational manager at
a large unionised organisation explained that TUs had helped management in avoid-
ing further disciplinary action for a valued employee:
. . . it wouldn’t have helped the company to lose somebody of his skill but that’s why we use the union
afterwards and say, ‘You need to keep an eye on this guy because he’s one of your members.’
Union respondents argued that, where possible, informal interventions offered

the best possible chance of resolving disciplinary issues and avoiding dismissal.
Importantly, however, this was dependent on the nature of union–employer relations.
Where unions were not recognised, TU officers rarely played any informal role.
Relations between union and company management tended to be adversarial, with
little day-to-day contact and consequently minimal informal discussion. Normally,
officers would only get involved immediately prior to a disciplinary hearing. There-
fore, within our sample, representation in itself was insufficient to facilitate informal
processes of dispute resolution. For this, broad and robust structures of union organi-
sation were crucial.
Within disciplinary hearings, there was also a stark difference in the roles played by
non-union companions and union representatives. Non-union companions were
mainly seen as a source of moral support and a safeguard in the event of management
malpractice but they rarely made an active contribution. There were four reasons for
this. Firstly, companions rarely had any expertise in, or experience of, disciplinary
hearings. Secondly, companions were confused as to their role. They were often not
fully, or correctly, briefed by the employer. Most believed that they were there to
‘witness’ events and were not there to make an active contribution. According to one
companion:
We just had to sit there. We weren’t allowed to discuss it with anybody else in the business. . . . I was
told not to comment on anything or speak to her during it. . . . I felt that I was there purely to sit, give
her a tissue, and talk to her whilst they decided what punishment they wanted to give her.
Thirdly, they were often poorly prepared with little notice of the hearing and were
rarely provided with documentation or information beforehand. Finally, some com-
panions feared being implicated in the issue or seen as a troublemaker. A manager
gave the following example:
One guy got asked to go in with someone. He didn’t want to go in and he actually came to myself and
my line manager and said, ‘Look, I really don’t want to go in this disciplinary . . . I don’t want you to
think I’m involved in it in any way’.
In contrast, the role played by TU representatives within formal hearings was multi-
faceted. As with companions, they provided moral support but crucially, they were
normally trained and had a degree of legal knowledge that enabled them to contest
procedural issues. Some management respondents admitted that union representa-
tives were more familiar with procedure and relevant law than they were. Most
representatives believed that their fundamental task was to act as an advocate for the
employee in order to get the best possible result. In some situations this meant
adopting an adversarial position in trying to ‘win’ the case by pointing out evidential
and procedural flaws. In others, where a case was weak, union representatives
argued that pleading mitigation was often the most effective strategy. Respondents
saw no contradiction between using informal channels to try to achieve a resolution
and robustly defending their member within the formal stages of a disciplinary
procedure.
In organisations that recognised TUs, management viewed representation at
disciplinary hearings as beneficial. Firstly, respondents stated that effective union
representation ensured that their process was fair and robust. Secondly, in most cases,
union representatives assisted the smooth running of hearings. They were able to
make sure that their member understood the procedure and the implications of the
situation. An HR manager within a public sector organisation explained that:
the union will have spent some time with the individual before the meeting . . . exploring what the
implications are for that individual and will have done a lot of the work in determining how they’re
going to respond to those issues so that we have some rational response.
Furthermore, union representatives were able to ensure that employees argued their
cases in the fullest possible terms, even if this meant going beyond the strict remit of
the right to accompaniment and answering on behalf of the employee. This was seen
to be important by both managers and representatives in establishing the facts and
coming to a fair decision:
if the individual, for whatever reason—nerves, capability, anything of that nature—can’t put forward
their own case, if the shop steward or the full-time official can put a better justification to it then you’re
going to get a fairer output from the hearing [Operational Manager].

Within non-unionised environments, the approach of union officers was conditioned
by a mutual suspicion that often existed between employer and union. Employers
were concerned that unions saw representation as an opportunity to advertise their
services and increase recruitment. This was illustrated by an HR manager in a small
non-union organisation:
We thought he’s obviously trying to get his numbers up then he could have forced a ballot to try and
get recognition. But yes, I think he was playing up because I think he wanted to come in and be the big
‘I am’ and then they’d tell their mates and then they’d all join and then they could get in.
Union officers responded to this antagonism by adopting a formal approach relying

on superior legal knowledge and procedural understanding to deter employers from
dismissal. However this merely tended to reinforce employer attitudes. This once
again suggests that while only TU representatives played a substantive role within
formal disciplinary hearings, the precise nature of that role was not dependent on TU
presence alone but on the structures and relationships within which unions operated.
4.3 Impact of accompaniment and representation disciplinary outcomes

The impact of non-union companions within our sample was limited to formal
disciplinary hearings. However, even here, they had a limited effect on outcomes. If
anything, where non-union companions played an active role, respondents argued
that they did not necessarily help their colleague’s case. According to an HR manager
in a large public sector organisation, companions
usually end up getting the person who they represent into more trouble than they started off with
because they’re not aware necessarily of how the processes work. We get a number of people who read
things on the Internet and think that that must apply in all situations.
Non-union companions tended see themselves as being powerless and consequently

as having little impact. There was just one case where a companion felt that they had
been able to play a positive role in explaining the implications of a disciplinary process
to a colleague and persuading them not to leave the company:
She was going to just leave; she had convinced herself she was going to get sacked, and she was just
going to walk out and leave and just tell everyone exactly what she thought and just leave, but I
convinced her that’s not what was going to happen; you’re not going to get sacked; you’ve just been told
off; you just need to be more reliable and just turn up on time [Companion].
Importantly, this companion had previous personnel experience and therefore

it could be argued that if non-union companions are to have any positive impact
on outcomes, a degree of knowledge and experience is essential. Even then, they
face significant disadvantages in terms of confusion over their role and a lack of
information.
In contrast, in organisations that recognised TUs, all respondents claimed that
representation affected outcomes. Union representatives argued that their influence
was strongest within informal stages of disciplinary processes. They were well placed
to identify issues and potential solutions at an early stage. For example, respondents
generally agreed that employees with underlying personal problems were more likely
to confide in their shop steward than in their line manager. Importantly, the relative
independence of TUs provided representatives with a legitimacy that was crucial in
such cases. This also underpinned the ability of union representatives to work with
members to change behaviours and avoid possible dismissal:
He’s able to say, ‘Look, you will get sacked. If you don’t change’ . . . they have the ability to speak on
a different level sometimes and say, ‘You’re going to lose your job mate’ . . . a TU rep that they live and
work with out there that they’re going to trust as a mate can say, ‘You’ll get sacked’. I can’t say that
[Operational manager].
By the time an issue reached a formal hearing, union respondents felt that avoiding
disciplinary action was much more difficult. Even then, managers claimed that good
quality representation could have an impact. By clarifying issues and exposing
deficiencies, union representatives were able to make them think twice before deciding
on a disciplinary sanction, particularly dismissal. Also, decisions could be affected
by new information coming to light during hearings, particularly in relation to
mitigation. This was more likely to occur, they argued, where there was union
representation.
There are some guys that are very, very quiet who, during their career, you rarely have anything to do
with them . . . if those individuals end up in a position of a disciplinary then you don’t know a lot about
them in terms of their background, their family life, what goes on there, so union guys can help bring
some of that out and try to paint that broader picture [Operational manager].
Managers also cited cases in which (what they perceived as) a realistic approach
on the part of the TU representative had been successful in winning a reprieve for
their member. Rather than argue a case against all the evidence, union representatives
would be more likely to encourage their member to own up to a misdemeanour and
argue for leniency. It could be argued that unrepresented employees would not have
the confidence to do this.
In organisations that did not recognise TUs, the impact of union representatives
was much less clear. In most cases (as explained above) there was little relationship
between employers and the regional officers who were responsible for representing
members in disciplinary hearings. Consequently, proceedings were more likely to be
adversarial. Union respondents generally believed they had less chance of affecting
outcomes through constructive approaches and so relied on exposing potential legal
irregularities and raising the possibility of employment tribunal claims.
4.4 Key factors shaping the impact of representation and accompaniment

The impact of representation and accompaniment appeared to depend on, firstly,
the characteristics of the companion or representative and secondly, the nature
of their relations with management. Even within the most conducive, unionised
environments, the individual attributes and competencies of the representative
were crucial in determining their impact. Experience not only provided a depth of
knowledge of company procedures but also underpinned high-trust relationships
with managers, which tended to have developed over time. In particular, experienced
representatives were seen to have the confidence to deal with issues on an informal
basis as opposed to simply defending members in an adversarial manner. Non-union
companions seldom had the experience of accompanying employees within formal
hearings, having little knowledge of procedure and consequently lacking the assur-
ance needed to play an active role.
One crucial factor was training—here there was a clear difference between TU
representatives and companions. Most union representatives had attended basic
training that included representation in discipline and grievance. A number of
more experienced representatives had attended a range of more detailed courses on
employment law, discipline and grievance and advocacy. Companions for the most
part had no training unless this had been provided as part of their normal work role.
The personality of the companion or representative was also seen to affect
outcomes. For example, it was generally argued by management respondents and
accepted by union respondents that confrontational approaches, although sometimes
necessary, were largely ineffective. They tended to cut off any possibility of informal
resolution and reinforce adversarial employment relations. One regional officer
argued that:
. . . as a matter of course we [TU officers] are very egotistical people because we’re in it to win, and I
have seen cases where members would have been better off not being represented by a bombastic
egotistical shop steward or full time officer because it gets the company’s back up.
Therefore, even well-trained and experienced TU representatives were dependent on

their relations with the employer in two respects: firstly, the extent to which TUs were
recognised; and secondly, the quality of the relationship between union representa-
tives and management. Where TUs were not recognised, the impact of non-union
companions was minimal. But it was also noticeable that in companies which did
not recognise TUs, but in which regional officers represented members, there was
little trust between the parties and hence disciplinary matters were handled in an
adversarial and formal way. One regional officer explained this as follows:
generally these people have no experience, and they see me as the big bad union guy, and ‘I’m not going
to be dictated to by this big bad union man’ . . . it depends on the reaction I get from the person I’m
dealing with. I can be so nice and so reasonable, or I can be over the table at them.
Non-union employers that we interviewed had little experience of TUs and perceived
them as militant and a threat to stable employee relations. They believed that TU
representatives were there to ‘catch them out’ rather than resolve disputes. Union
respondents cited isolated examples of non-union employers coming to accept that
TUs could be useful in dealing with difficult and sensitive disciplinary situations.
However, in these cases, union representatives had had to work very hard to establish
their credibility and were still kept at arm’s length.
While recognition was important, the degree to which representation impacted on
disciplinary outcomes was ultimately defined by the nature of the relations between
the representative and other stakeholders, in particular the line manager and the HR
manager/advisor. Within three of our case study organisations, there were established
partnership agreements, and in one case, the development of a learning partnership
also had positive spillover effects in dealing with disciplinary issues. But the crucial
ingredient was trust between individual union representatives and managers. Without
it, both parties resorted to more formal procedural approaches which inevitably
became adversarial. It was also clear that trusting relationships were built over time.
According to an HR manager in a large organisation:
I think the ability to talk informally depends entirely on the relationship that the manager has with the
TU guy. If that underpinning relationship isn’t one of trust where people can talk in a four-wall
environment then I think it could be a recipe for disaster. The last thing you want is for a manager to
disclose something or talk about something and then the TU to use it officially as a weapon against the
manager because you’d only do that once and you won’t do it again and the relationship is kaput.
There was evidence that the changing nature and make-up of the HR function
was placing a strain on such relationships, resulting in a formalisation of processes.
Traditionally, senior union representatives were used to dealing with specific person-
nel managers. From the TUs’ viewpoint the move to a business partner model and
even outsourced HR disturbed these relationships. For example, a TU representative
explained a decline in the use of informal resolution as follows:
One time you had a personnel department that sat over the whole site so you were dealing constantly
with the same people . . . whereas now it’s split up . . . you’ve got different HR people there, different
managers. So consequently, you’re going into hearings with totally different HR people all the time.
Sometimes it may be the first time you’ve met them and you haven’t got that feeling of . . . I wouldn’t
say confidence but you certainly don’t feel as sure as you would be with somebody that you know.
In addition, a number of respondents pointed to the changing composition of HR

departments. Whereas in the past personnel managers would have often come from
within the organisation, HR advisor roles were increasingly occupied by younger,
relatively newly qualified, staff. Many of these advisors had made conscious attempts
to develop relationships with TU representatives, but this was not always easy.
Importantly, there was an acknowledgement from both managers and representa-
tives that the relative strength of the union did have an impact in shaping disciplinary
decisions. However, this was not rooted in fears over potential industrial action but in
the desire to maintain good management–union relations. Strong union organisation
appeared to underpin constructive relations between managers and representatives
whereby individual employment disputes were handled with an emphasis on
resolution. In contrast, where there was little union presence, decisions were subject to
unilateral management discretion.
5. DISCUSSION AND CONCLUSION

Analysis of large-scale survey data (Antcliff and Saundry, 2009; Edwards, 1995;
Knight and Latreille, 2000; Millward et al., 1992; Saundry and Antcliff, 2006) has
pointed to a persistent link between TU organisation and more moderate disciplinary
outcomes. However, there has been little recent qualitative research examining the
social and political processes that underpin and inform disciplinary processes. More-
over, the recent policy debate over dispute resolution has severely underplayed the
potential impact of employee representation.
The findings offer some support for arguments (Saundry and Antcliff, 2006) that
strong structures of TU organisation are important in facilitating informal processes
of resolution which can help to avoid unnecessary disciplinary sanctions. Within the
unionised settings in our sample, representatives provided an early warning system,
a channel of communication and played a key role in encouraging self-discipline
amongst the workforce (Edwards, 2000). Furthermore, within formal disciplinary
hearings, representatives were able to affect disciplinary decisions (albeit to a lesser
extent) and were generally seen by management respondents to play a constructive
role in case management.
However, TU representation (and even union recognition) alone was not enough.
This depended on three additional conditions. Firstly, the ability of individual repre-
sentatives to have an impact on the outcomes of disciplinary decisions was dependent
on their level of training and experience (Moore et al., 2008). Secondly, positive
relationships between representatives and key stakeholders, employees, operational
management and HR professionals (Edwards, 2000) were necessary. Informal
processes were predicated on trust and, in turn, trust was based on relationships
developed over time.
Thirdly, and perhaps most importantly, the impact of union representation was
dependent on the strength of union organisation within the workplace (Charlwood
and Terry, 2007). In some respects strong unions were better able to restrain mana-
gerial prerogative (Edwards, 1995). However, this was not generally achieved through
the direct application of union power and influence. Instead, where union organisa-
tion was robust, employers were encouraged to engage constructively with union
representatives in order to resolve individual employment disputes and maintain good
industrial relations. Furthermore, the ability of union representatives to facilitate the
resolution of disputes was conditional on their legitimacy and independence and their
consequent confidence of their members. For example, members would be unlikely to
confide in or listen to representatives who they perceived to be ‘hand in glove’ with
management.
Where TUs were absent, disciplinary decisions were more likely to be subject to
unilateral (and largely unchallenged) managerial discretion. In cases where TU rep-
resentation was provided but organisation was weak, employers sought to minimise
the role and influence of union representatives who were generally perceived as a
source of conflict and obstruction. Here managers resorted to greater formality and
more punitive approaches to discipline were likely.
In some respects, these findings reflect the reality of workplace power relations.
Even in highly unionised organisations, managers retained ultimate discretion over
disciplinary decisions. Unions found it difficult to protect their members through
simple resistance, either inside or outside disciplinary procedures. Instead, they were
forced to engage constructively to try to resolve and avoid disciplinary situations,
even if this involved imposing a degree of self-discipline (Edwards, 2000). Further-
more unions were faced with balancing the demands of members for robust repre-
sentation and maintaining good relations with managers (Nicholson, 1976), which in
turn underpinned their ability to influence disciplinary outcomes.
Therefore, conceptualising union representation within discipline as either a
straightforward bulwark against managerial control or as a conduit to dispute reso-
lution is oversimplistic. Instead, union representation plays a crucial role in the
negotiation of order (Edwards and Whitston, 1989) through both informal processes
and formal disciplinary procedures. This is shaped by the balance of workplace power
but also the micro relations between different union and managerial actors.
From a policy perspective, an over-riding conclusion from our research is that
strong structures of employee representation underpinned by high-trust relations are
critical in minimising disciplinary sanctions and dismissals. This would suggest that
the current pressures on traditional workplace union structures and the reduction
in the numbers of shop stewards and workplace representatives (Charlwood and
Terry, 2007) can only have a negative impact on the ability of organisations to resolve
disputes. This makes the failure of the Gibbons Review (Gibbons, 2007), and the
subsequent response of the government, to engage with the issue of representation
particularly problematic.
The analysis above also prompts fundamental questions over workplace discipline
in the 73 per cent of workplaces in which TUs are not recognised (Kersley et al., 2006).
In part, the right to accompaniment was designed to provide vital safeguards for
vulnerable workers in non-unionised environments. However, its impact must be
questioned (Saundry and Antcliff, 2006) given the powerlessness of non-union com-
panions found within our sample. Importantly, companions were not involved until
formal disciplinary hearings and we found little sign of the companion role developing
into one offering broader representation. At most, companions provided moral
support but were seen to have little impact on outcomes and made no significant
contribution to disciplinary processes. This was largely related to their status within
the process. They were pigeonholed as ‘witnesses’ and consequently were rarely
provided with any details of the case or given time to prepare. Most did not have
sufficient training or knowledge of the process to be able to question managements’
handling of the process. Perhaps most fundamentally, without the independence and
status of TU representatives, they felt vulnerable in challenging managers who were
also often their own line managers. As a result, companions found it difficult to speak
freely for fear of the potential impact on continuing working relationships. Therefore,
merely bolstering the legal status of companions is unlikely to have any impact.
This provides significant weight to Pollert and Charlwood’s (2008) argument
that existing workplace processes are ineffective in resolving disputes involving
unrepresented workers. It also suggests that attempts to reduce the formality of these
processes, as proposed by Gibbons (2007) and reflected in the Employment Act 2008,
will do little to improve this situation. As our findings show, informal processes
appear to work well where there are comprehensive structures of representation but
do not operate at all where these are absent.
It could be suggested that the role of non-union employee representatives could be
expanded to fill this ‘representation’ gap, with employers themselves providing for
the development of relevant skills and expertise. Indeed, one non-union employer
suggested this during our research. However, the evidence to date is not promising.
Currently, only 5 per cent of workplaces have non-union employee representatives in
place (Kersley et al., 2006) and there is only anecdotal evidence of employers provid-
ing training in disciplinary handling. Furthermore, our findings above suggest that
the effectiveness of TU representatives is partly based on their status, influence and
perceived independence from management. This in turn is based on a democratic
legitimacy that not all non-union employee representatives enjoy (Charlwood and
Terry, 2007). This is clearly an area in need of further investigation; however, one
must question whether even trained non-union representatives could play a similar
role to their union counterparts.
Contemporary policy discussions over the system of dispute resolution in the UK
have largely ignored the issue of employee representation. This article has begun
to remedy this omission. It suggests that strong structures of TU representation
underpinned by high-trust relations can help to create a focus on the resolution of
disciplinary issues and away from adversarial confrontation. In contrast, where TUs
are absent, non-union companions are unable to provide the countervailing balance
of power upon which dispute resolution processes are anchored. However, there
is a pressing need for a more detailed programme of research that examines the
themes discussed above in a wider range of organisational and industrial contexts and
explores the impact of alternative systems of employee representation.
Acknowledgements and disclaimer

The authors would like to acknowledge the financial support of Acas who commis-
sioned the research from which the findings in this article are drawn. The views in this
report are the authors’ own and do not necessarily reflect those of Acas.
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Industrial Relations Journal 42:2, 195–211

Discipline, representation and dispute

ABSTRACT irj_600 195..211

© 2011 The Author(s)

2. REPRESENTATION AND WORKPLACE DISCIPLINE

3. METHODOLOGY AND RESEARCH DESIGN

© 2011 The Author(s)

4.1 The context of discipline, representation and accompaniment

4.2 The role of union representatives and companions

Union respondents argued that, where possible, informal interventions offered

© 2011 The Author(s)

Union officers responded to this antagonism by adopting a formal approach relying

4.3 Impact of accompaniment and representation disciplinary outcomes

Non-union companions tended see themselves as being powerless and consequently

Importantly, this companion had previous personnel experience and therefore

4.4 Key factors shaping the impact of representation and accompaniment

Therefore, even well-trained and experienced TU representatives were dependent on

In addition, a number of respondents pointed to the changing composition of HR

5. DISCUSSION AND CONCLUSION

Acknowledgements and disclaimer

© 2011 The Author(s)

© 2011 The Author(s)

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