Is there a right to legal representation at disciplinary hearings?
During a disciplinary hearing, there is no statutory right for a worker to be accompanied by a legal representative. There have been cases however where workers have claimed that their legal right to be accompanied should be extended to include legal representation.
The basic right to be accompanied
If a worker is invited to attend a formal disciplinary meeting, they have a legal right to choose to be accompanied by a fellow worker or trade union representative of their choice. Though the statutory right to be accompanied does not extend to legal representation.
An employer can, however, grant a contractual right to legal representation at disciplinary hearings, if they wish, but this is rare and only in certain professions.
Is there a legal right to have a lawyer present?
In the case of R (on the application of G) v Governors of X School and Y City Council, the employer refused to grant permission to a teaching assistant to be accompanied by a lawyer at a disciplinary hearing. The employer was found not to have breached the assistant’s human rights.
This decision by the Supreme Court followed on from previous cases which implied that where an individual’s ability to practice their chosen profession is at stake, they should have the right to legal representation.
A case that exemplifies this was Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health.
Here The Court of Appeal held that the NHS doctor who was subject to disciplinary proceedings had the right to be represented at any disciplinary hearing, by a qualified lawyer who had been instructed by a medical protection organisation.
Doctors who are employed by the NHS are contractually entitled to have legal representation from a qualified lawyer at disciplinary hearings which are commenced on the grounds of capability or conduct, in line with “Maintaining high professional standards in the NHS”. This was a key factor in the case of Kulkarni.
Breach of trust and confidence
The case of Stevens v University of Birmingham involved an employee who was a clinical professor who was facing serious allegations about clinical trials he was conducting.
The employee’s request to be accompanied by a person of his choice, who was not a work colleague or trade union representative was refused by the employer.
The employee’s chosen representative was not a qualified lawyer but did have a legal education and was also a member of the medical defence organisation.
The employee claimed that the refusal was a breach of contract (and not a human rights complaint).
The High Court agreed and held that the employer’s refusal to grant the employee’s request was a breach of the implied contractual term of trust and confidence.
How to deal with requests for legal representation
Deciding whether or not to allow the employee to be accompanied by a lawyer will depend generally on the individual factors of the situation.
If an employee asks for permission for legal representation at a disciplinary hearing, the employer should consider the gravity of what is being alleged against the employee and any other consequences on the employee when deciding on whether to grant permission.
The employer should also be aware of any contractual entitlement that the employee has to legal representation at disciplinary hearings and following the case of Stevens v University of Birmingham, should also take into account the potential for a breach of the implied term of trust and confidence.
Staff who conduct the hearings should be kept up to date with developments on dealing with workers’ statutory right to be accompanied at disciplinary and grievance hearings.