THERE have been recent case law developments focusing on the rights of employees to be accompanied at internal disciplinary hearings, giving scope to extend those rights beyond the statutory minimum.
Current legislation gives workers and employees a statutory right to be accompanied by either a trade union representative or a fellow worker at a disciplinary hearing. Such a hearing is one that may result in a formal warning being issued, the taking of some other disciplinary action or the confirmation of a warning or disciplinary action. Employees are entitled to be represented by an official of a trade union (whether the employee is a member of the union) or somebody who is a colleague of the worker in that particular business.
There is no general right in employment law to bring a lawyer to a disciplinary hearing. However, there have been a number of recent developments which suggest that, in certain circumstances, it would be right to allow qualified legal representatives to attend.
Some employees, such as NHS hospital doctors, do have a right under their contracts of employment for a qualified legal representative to attend the disciplinary hearing. Alternatively, it may be a reasonable adjustment to allow a disabled employee to be accompanied by a lawyer, although specific medical advice would be sought in advance of making this decision.
The recent case law has focused on other arguments aimed at establishing a right to legal representation. In a case that reached the Court of Appeal, it was held that, where an employee was facing what was in effect a criminal charge as a result of disciplinary hearings brought against him, this implied a right to legal representation. The case focused on a doctor who was attending an internal disciplinary hearing which could have resulted in his suspension or removal entirely from medical practice and he was entitled to be represented by a lawyer instructed by the Medical Protection Society. The above case was determined giving consideration to the Human Rights Act 1998 which gives the right to a fair trial in UK law. Because of the seriousness of the proceedings, it was held that the right would be infringed if legal representation was not allowed.
However in a further case, relating to a teaching assistant who could have been reported to the Independent Safeguarding Authority as a result of a disciplinary hearing, the court held that legal representation should not be allowed at the hearing. This was despite the fact that the teacher could have been put on the childrens barred list and prohibited from working with children.
It seems therefore that a significantly high threshold must be passed before the right to legal representation at disciplinary hearings is engaged. Each case must be considered on its own merits and only where an individuals career is effectively at stake is the right likely to be triggered. Employers are not advised to include any such references to legal representation in disciplinary policies and advice should be sought if businesses consider that the right may apply.