Member Article

The High Court has held that in certain circumstances, an employee has the right to be represented by a lawyer at internal disciplinary hearings.

The Employment Relations Act 1999 gives employees a statutory right to be accompanied only by a work colleague or union official at disciplinary and grievance hearings. The good practice recommendations in the new ACAS Code on Disciplinary and Grievance in the Workplace reflect this.

Facts
In R v The Governors of X School the claimant was employed as a music assistant. His school commenced disciplinary procedures against him as a result of him having kissed a 15 year old boy and he was dismissed. The claimant sought to be represented by his legal representative at the internal disciplinary hearings but the school refused.

Given the circumstances the employer had a duty to report the claimant to the Secretary of State for Children Schools and Families to decide whether he should be entered on the register of those who are unsuitable to work with children. The claimant argued that by not allowing legal representation at the internal hearings his right to a fair trial under Article 6 of the European Convention on Human Rights was breached.

High Court decision
The Court held that the claimant was entitled to be represented by his legal representatives, and not just a trade union representative or fellow worker. The internal disciplinary procedure needed to be viewed as part of the same procedure as the Secretary of State's judgement relating to entry onto the register of those unsuitable to work with children. The Court held that:

"..., the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant's future working life ..., are such that he was, and is, entitled to legal representation .... On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient."

Comment
Previous case law suggested that internal disciplinary hearings were not akin to judicial proceedings so that legal representation was not an entitlement
and leave to appeal this decision has been granted.

However, until or unless it is overturned then this case has potentially wider application to other sectors such as financial services or medicine where disciplinary action by an employer can lead to a loss of professional authorisation preventing the employee from earning a living in the future.

While employers probably do not want to go as far as suggesting that an employee is legally represented at a disciplinary hearing, until we know the outcome of this appeal, they should consider any such request carefully

 

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