Right to Legal Representation at Disciplinary Meetings?
The High Court has decided that in ‘certain circumstances’ an employee is entitled to be represented by a solicitor at an internal disciplinary hearing.
The case in question involved a Music Assistant at a primary school who had allegedly had an inappropriate relationship with a child. The school had refused the employee’s request to have legal representation at the disciplinary hearing which led to his summary dismissal. He was also told that he would be reported to the ‘appropriate agencies’ on the basis that he might be unsuitable to work with children.
The High Court accepted the employee’s argument that because of the serious nature of the allegations of misconduct and the severity of the consequences that he faced, he was entitled to an ‘enhanced measure of procedural protection’. The High Court held that the employee could not fairly be expected to represent himself, and being accompanied by a trade union official or colleague would not be sufficient. It was, however, made clear that this decision only related to the facts of this case and was not intended to have any wider implications.
Therefore, it is our view that the Employment Relations Act 1999 remains good law and that in the vast majority of cases the right to be accompanied will not extend beyond either an accredited trade union representative or work colleague.
However, in cases where it may affect an employees’ ability to pursue their profession in the future, an employer may have to consider allowing legal representation. That said, in the vast majority of cases an employer will not need to grant a request from an employee to have a legal representative present.
If there is any doubt as to whether you should or should not allow legal representation at an internal disciplinary hearing it is our best practice recommendation that appropriate advice is sought. Human Capital Services is well placed to provide you with advice and guidance that you may require.
For further advice or to receive more details please contact: enquiries@humancapitalservices.co.uk or call us today on 0141 776 6456.
21 April 2009, webeditor
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