Representative delays: how long do you give them to sort one?
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This should go without saying but disclaimer: The information provided below is for general informational purposes only and does not constitute legal, financial, medical, or other professional advice. This article in particular, because any potential decision to proceed ahead despite assertions of rights in highly risky. You should consult with a qualified professional for specific advice tailored to your circumstances.
If you’re interested learning more about this topic, handling complex people problems covers this, or you can find all of our courses here.
First a quick clarification; In New Zealand, we are somewhat stuck with two terms- representatives and support persons. The extent to which they are the same or different is complex, but for simplification (i.e. not forever writing both) I’m only using the term representative. Mostly because it’s shorter. Or read it all here.
The delay in the process
Here’s a very common problem; you need to have a meeting, and you’ve set a date (giving at least two day’s notice)- whether a disciplinary, incapacity, performance, consultation- any meeting that you need to allow the person to have a representative. But- their representative can’t make it, not that date, not soon, at…. some stage in the future, when they decide.
This leaves us feeling no longer in control. Everything and everyone is on hold until someone outside of the organization can free up their calendar. So tensions rise, frustrations mount, people come to HR looking to drive this forward. The employee’s manager huffs at you, rolls their eyes, and say; “Why are we waiting? Let’s just have the meeting.”
Can you? Should you? Let’s discuss.
Read here for how sometimes it’s HR role to advocate for the employee.
Read here for how managers can run too hot (or too cold)
Opportunity to get support
Where an employee needs to attend a meeting where they have a right to representation, they also need a fair opportunity to organize such a representative, discuss and organize themselves such that they can fairly defend themselves. They need the chance to get someone in their corner to back them up. But this isn’t an opportuntity for them to filibuster- they can’t jam the process by asserting a right to an action, and them refuse to take that action, thereby stopping the process.
Read here for more of a philosophical deep-dive into disciplinaries.
What is an opportunity?
This is clearly a vague term, but to give you a simple definition, an opportunity is a reasonable time window in which someone can act on something or not; a timebound situation or set of circumstances that makes it possible for something to happen. This means:
They are limited. Opportunities don’t last forever, you need to act. A clock starts ticking for when the opportunity will close.
A window of time. This is more of a ‘piece of string’ question, when does a window start, when does it end, and how big is it. This is subjective to the people involved, and the situation.
Read here for why employees sue.
Other people are busy. We set the timeframe to what works for us, and we also have had foreknowledge that this was coming up. The employee probably does too, but the person they want to get for representation may not be available at short notice- either to attend the meeting, and/or prepare for the meeting.
It could be complicated. Some cases are simple, some are complicated. Most cases don’t hinge on large complex sets of data- witness statements, email chains, CCTV footage. But some do; for instance, concerns regarding conduct in financial matter (e.g. from payroll or account payable audits). If there’s a lot of data, the representative may need more time to get up to speed.
Read here for more on HR being the judge.
Who are they?
Who they are does influence how they act, and how we react. Here’s a rough rundown, with some advice:
Colleagues, or employee union delegates. These are people who work for you, so (unless they are working nightshift) they are here anyway. There should be no dramas with them turning up, at most sometimes they ask for some time off the floor to talk with the employee, and/or we need to organize with their boss that they can be off the floor for the meeting.
Advice- there should be no real delay here, because we can make them available.
Read here for a similar discussion on who makes the decisions.
Friends and family. Often an employee brings their friend or family member along. It’s common to get a delay from them, if the person works, they can’t drop everything with 3 days’ notice. So long as the alternative date is reasonable, it’s fair to change to so they can fit it into their schedule.
Read here how representatives can be constructive.
Advice- An alternative date up to a week later should be accommodated.
External union delegates. This one can be complicated, and often is the biggest source of tension between union organisers and HR. Generally union organisers are busy and stretched across many sites or departments, so don’t have that many free spots in their diary, so more often than not, they are getting in contact with HR to reschedule. This can go reasonably, or fractiously. Implications that HR should have contacted them first are common; but HR should avoid this for privacy reasons- the employee should select their own representative, and there may be reasons why they don’t want to contact the union. Generally this takes a lot of discussion, reasonableness, and occasional pushback.
Advice- They have their diary to manage, but theirs isn’t the most important. I’d suggest requests to reschedule more than a week should be pushed back on. If a union can’t support their members with 9 days (2 given, plus 1 week), that’s their operational issue, not yours.
Read here for how representatives can be destructive.
Lawyers and advocates. If an employee gets a lawyer, it’s not uncommon for them to demand reschedules, at their convenience. This can easily feel like a jostle for control- the representative trying to dictate the terms of the process- the when, how and what.
Advice- Some are reasonable, some a mischief. If it’s just a question of when, the same advice as the union can apply, although this is a different scenario- you run the risk of allowing them to charge their client (your employee) more money to argue, which escalates the situation. Don’t give up control, but also be very mindful of escalation.
Read here for more on escalation.
What you should do
Make sure (and I’m somewhat taking this as read) that you gave them enough time in the first place to get someone. How long will vary on preferences, my preferences are two days at least. Others might disagree that you need more, and I wouldn’t disagree with 3 or more.
Focus on the outcome. If the person is there alone but comfortable to proceed, or with someone, we have no problem. But; if the person turns up to the meeting without someone, saying ‘I’d like to have Dave/my uncle/the union but they can’t make it’ can you fairly say this? ‘well you’ve had enough time to organize that’.
Adjust the time to the situation. As above, if it’s complex, give them more time.
Set the time as the default, but make sure they know they can ask for more time IF they need. For example- words to the effect of:
“the meeting will on xxx of xxx. You are welcome to bring a representative or support person and we encourage you to do so. If you need to reschedule the meeting so they can attend, please let me know by xxx (the day before)”
The purpose of this is to make it clear when the meeting is, and that there is some leeway on time if required, but there is a default time that they need to engage with you to request an amendment.
Avoid getting stuck with an unspecified time. This can either be by not specifying a time in the invitation to the meeting, or allowing the employee or their representative to remove the time, to be advised by them at a later date. If they need more time, sure- but when? Consider not having the meeting on that day ONLY if a new date is provided as an alternative. You need a new date, not just the removal of the existing date. Never lose control of the diary.
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