Disciplinary Hearings and Representation
The issue of a disciplinary hearing and who is entitled to attend has become increasingly contentious in recent years.
The law has always provided an employee with a right to attend a disciplinary hearing with a work colleague or a Trade Union representative. It is often the case that when an employee is involved in a disciplinary action they feel uncomfortable taking a work colleague with them or they are unable to find a work colleague to attend. It may also be the case that they are not a member of a Trade Union. In the circumstances, the standard approach was that an employee would have to attend by themselves. They are entitled to request that they have a friend or a lawyer present, but it is unusual that an employer would agree to this and/or that they would be required to do so under the law.
However, following the case of “R (on the application of G) – v – Governors of X School”, there has been a general recognition that employees shall have an entitlement to legal representation at disciplinary hearings in extreme cases. There has however been some confusion as to when that situation will arise and/or when employers are required give to a request by an employee to have a legal representative present.
The above case has recently reached the Supreme Court which overturned the original decision at the Court of Appeal which stated that a Teaching Assistant accused of sexual misconduct could rely on the right to a fair trial in accordance with Article 6 of the European Convention of Human Rights, and therefore was allowed legal representation during the schools disciplinary hearing. The original decision was based on a number of factors including that had the employee been found guilty at the disciplinary hearing then this would have a significant effect on their ability to work in the chosen field going forward. In this case the Supreme Court held that the decision of the disciplinary procedure would not automatically lead to the employee being barred from working as a Teacher. The court held that it did not necessarily follow that a finding of guilt at the disciplinary hearing would lead to a knock on effect and bar from working by the Independent Safeguarding Authority.
What can be seen from this case is that there is a clear distinction between situations where a finding of guilt at a disciplinary would prevent the employee from working in their chose field, and situations more common in the public sector whereby an employers disciplinary process feeds into the procedures of a standard body like the Independent Safeguarding Authority but it does not necessarily determine a decision.
In the case of Kulkarnia – v – Milton Keynes Hospital NHS Foundation Trust, the view, made obiter, was that a doctor accused of inappropriately touching a patient would be entitled to legal representation at a disciplinary hearing.
Employers need to be aware when an employee may be entitled to legal representation. It seems by the most recent judgement that it would only be in extreme cases, nevertheless, advice should be sought as failure to follow a proper process will lead to a potential unfair dismissal claim against the employer.
If circumstances are not extreme and there is no right to legal representation, then employers should consider who is a reasonable choice of companion. An employer can at their discretion allow an employee to bring a companion who is not a colleague or Trade Union representative. If, however, the choice of companion is unreasonable then an employer is entitled to reject this and proceed with a hearing in any event. An unreasonable companion would for example, be an employee who is involved with the disciplinary, has knowledge of the disciplinary, is used as a witness in a disciplinary and/or would be compromised by attending the disciplinary.
If in doubt, employers should seek advice before beginning a disciplinary. There are a number of obligations which are outlined by statute, case law and the ACAS code of conduct. A tribunal will take into account the size of the employer when assessing the reasonableness of the procedure adopted but there are certain obligations that must be adhered to by all employers.
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