Weekly dilemma: Legal representation at disciplinary hearings

One of my employees has asked to be accompanied by her lawyer at a disciplinary hearing. It’s a serious matter and I may need to report her to a regulatory body if the allegations against her are proven. Do I need to agree to her request?

In these circumstances it is likely that you will need to agree to the request.

There is no general statutory obligation on employers to permit employees to be accompanied by lawyers in disciplinary meetings. Under the Employment Relations Act 1999 an employee is only entitled to be accompanied at a disciplinary hearing by a trade union representative or a fellow worker where their request is reasonable.

Some employees may have a provision in their contract of employment that gives a broader right of accompaniment, which could include an entitlement to be accompanied by a lawyer. You should, therefore, check the employee’s contract and your disciplinary policy to see if the employee already has that entitlement. Furthermore, if the employee is disabled, you may be required to allow a lawyer to attend the disciplinary hearing as a reasonable adjustment.

In this specific situation, your employee may be entitled to be accompanied by a lawyer because the allegations are serious and the impact on the employee’s future career prospects may be severe. In the recent cases of Kulkarni v Milton Keynes Hospital Foundation NHS Trust and R (on the application of G) v X School and others, public sector employees successfully argued that they were entitled to legal representation at an internal disciplinary.

The claimants in both cases relied upon an argument that the right to legal representation arose under the Human Rights Act 1998 (specifically, under the right to a fair trial). In the R case, the Court of Appeal decided that where an internal disciplinary hearing could determine an employee’s civil right to practice his or her profession, the right to legal representation applied. It was vital to the decision that the allegations were of sexual impropriety with a pupil, and that the result of the disciplinary hearing finding might have resulted in his name being entered on a barred list, which would inevitably adversely affect his employability as a teacher.

The more recent case of R (on the application of Kirk) v Middlesborough Borough Council & Ors has made it clear that the entitlement to legal representation will not arise if the disciplinary proceedings are a private law employment matter with a stand-alone disciplinary issue. In addition, because the Human Rights Act only binds public authorities, the rights under it are only directly enforceable against a public sector employer. However, tribunals and courts are bound to interpret UK legislation in a way which is compatible with the Human Rights Act, and this argument could be a powerful weapon in an unfair dismissal claim brought against a private sector employee.

Kevin McKenna, associate, Weightmans LLP

XpertHR FAQs on employees’ right to be accompanied

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