November 24, 2015

Can an employee choose who they wish to accompany them at a disciplinary hearing?

Employers might be surprised to hear that employees facing allegations which could lead to the end of their career may be entitled to be represented by a qualified lawyer at a disciplinary hearing.

The general rule that employees are not entitled to legal representation has recently been challenged in two recent cases.

Therefore, organisations should think extremely carefully about the consequences for the employee and should ensure they take legal advice prior to any disciplinary proceedings that could result in termination of employment or the employee’s chosen career.

We’ve untangled the complexities for you and explain what you need to know about your employee’s right be accompanied at disciplinary hearings.

What is the Right to be Accompanied?

The minimum legal entitlement for an employee’s choice of companion at a disciplinary hearing is a:

  • Fellow employee, or
  • Trade Union Representative

However, some employers operate a more generous entitlement so check your disciplinary procedures first.

Employers must advise the employee of this right, normally in a letter inviting them to the hearing.

Unless your disciplinary procedure says otherwise, it is also important to bear in mind that the right to be accompanied does not extend to any investigatory hearing or investigation process.

However, there are some exceptions to the statutory minimum entitlement and it is wise to consider objectively any request to widen this entitlement.

Two recent examples

The case of R (on the Application of G) v the Governors of X School, which was decided in March this year, involved a teacher who had been accused of an inappropriate relationship with a pupil.

He was not permitted to be accompanied by his lawyer at the disciplinary hearing and challenged the decision in the courts on the grounds that he was denied the right to a fair trial.

The court held that because of the seriousness of the allegations, which could result in him being banned from working with children, he was entitled to legal representation.

If the employer had upheld the allegations they would have a duty to report him to the Secretary of State for Children, Schools and Families, with the result that he could be debarred from working with children.In view of the potential consequences the EAT held that the employee should have been given the opportunity to be accompanied by a legal representative.

In another recent case (Stevens v University of Birmingham), The EAT concluded that it was a breach of trust and confidence for the University to refuse the employee’s request to be accompanied by a Medical Protection Society representative. It took account of several factors including:

  • The University had allowed the representative to be present at earlier stages of the proceedings.
  • The employee worked for both the University and an NHS Trust, the latter of which offered more generous rights.
  • The effect of any decision, which involved misconduct in clinical trials, might have serious implications on his career.
  • There were no suitable companions within the minimum categories offered by law.

These cases are, of course, the exception rather than the rule, but emphasise the importance of considering such requests objectively and fairly before making a decision.

If you would like further advice on subject, you can contact us or call our advice line.

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