Legal representation at disciplinary hearings: when is there a right?

There is no statutory right for a worker to be accompanied by a legal representative at a disciplinary hearing.

However, cases have arisen in which workers have argued that the legal right to be accompanied should extend to legal representation. So where do employers stand? Ashok Kanani rounds up the case law on the right to legal representation at a disciplinary hearing.

Statutory right to be accompanied

Letter inviting an employee to attend a disciplinary hearing

Disciplinary procedure

For the purpose of the right to be accompanied how is a disciplinary or grievance hearing defined?

Basic right to be accompanied

Workers have a legal right to be accompanied, if they wish, at any formal disciplinary interview by either a fellow worker or a trade union official of their choice.

This is as far as the statute goes. The statutory right to be accompanied does not extend to legal representation.

There is, however, nothing to prevent an employer from granting a contractual right to legal representation at disciplinary hearings.

Since 2008, a number of employees have sought to assert a right to legal representation at disciplinary hearings, relying either on human rights or contractual terms.

Legal right to have a lawyer present?

In R (on the application of G) v Governors of X School and Y City Council, the employer was found not to have breached a teaching assistant’s human rights in refusing him permission to be accompanied by a lawyer at a disciplinary hearing.

This Supreme Court decision followed a line of cases that suggested that individuals should have the right to legal representation where their ability to practise their chosen profession is at stake.

For example, in Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health, the Court of Appeal held that an NHS doctor subject to disciplinary proceedings was entitled to be represented at any disciplinary hearing by a qualified lawyer instructed by a medical protection organisation.

A key factor in Kulkarni was that doctors employed by the NHS are contractually entitled to be represented by a qualified lawyer at disciplinary hearings commenced on grounds of capability or conduct, pursuant to “Maintaining high professional standards in the NHS”.

Breach of trust and confidence

In Stevens v University of Birmingham, the employee, a clinical professor, faced very serious allegations about his clinical trials.

The employer refused the employee’s request to be accompanied by a person of his choice (who was neither a work colleague nor a trade union official).

While not a qualified lawyer, that person did have a legal education and was a member of a medical defence organisation.

The employee pursued the refusal as a breach of contract claim rather than a human rights complaint. The High Court held that the refusal to grant the employee his request was a breach of the implied contractual term of trust and confidence.

Requests for legal representation

Whether or not to allow an employee to be accompanied by a lawyer will generally depend on the individual factual situation.

Where an employee asks permission for legal representation at a hearing, employers should consider the gravity of the allegations and consequences for the employee in making their decision.

The employer should also take into account any express contractual entitlement to legal representation at disciplinary hearings and, following Stevens, the potential for a breach of the implied term of trust and confidence between employer and employee.

In any event, employers should, generally and as a matter of good practice, ensure that staff who conduct disciplinary hearings are kept up to date with developments on how to deal with workers’ statutory right to be accompanied at disciplinary and grievance hearings.