Do I have to allow my staff to be accompanied at a disciplinary hearing by their solicitor?

There is no specific legal right for an employee to be accompanied at a disciplinary hearing by a solicitor. Section 10 of the Employment Relations Act 1999 provides that a companion may be either a fellow employee or a trade union official. However, guidance has indicated that an employer may need to consider a companion that falls outside of the scope provided by legislation if, for example, an employee’s first language is not English and no colleague or trade union official would be able to help them take part fully in the hearing.

Recent case law has suggested that employers may now be required to consider the wider civil rights of an employee when it comes to choosing a companion, and this may now open the door to more occurrences of legal representation at disciplinary hearings. This is because Article 6 of the European Convention on Human Rights confers the right on individuals to a fair trial and employees argue that this is invoked when faced with a disciplinary hearing, the result of which could be a dismissal which creates a legal barrier to their continuation in that field.

It is not only an issue that affects schools and other education establishments, but any profession where a decision can be taken, usually by a regulatory body, which means the individual may no longer legally undertake employment in that profession. Relevant case law does include claims taken by teachers, however, including R (on the application of G) v Governors of X School.

The latest case law on the subject, Ministry of Justice v Parry, involved the dismissal of a District Probate Registrar who had requested that her solicitor accompany her at a disciplinary hearing which could have resulted (and did) in her dismissal. The request was refused.

The EAT’s judgement pointed out that where a person’s civil rights are compromised, Article 6 is invoked. This is regardless of whether a final decision regarding a person’s suitability or fitness to practice would be taken by an external professional body at a later date.

However, it does not automatically mean that failure to allow legal representation will result in an unfair dismissal. It will still be a question of whether the dismissal was fair in all circumstances.

Points to remember:

  • Legal representation may be invoked where dismissal would create a legal barrier to an individual continuing to work in their profession;
  • This applies to public sector organisations – there is ambiguity over whether it would apply to private sector free schools;
  • Even when Article 6 is engaged, there is no automatic right in UK law to legal representation at an internal disciplinary hearing;
  • Legal representation would only apply to a hearing which could result in the employee’s dismissal, and not where the sanction would be any action short of dismissal e.g. a warning;
  • A tribunal will continue to apply the ‘reasonableness’ as a whole to disciplinary proceedings – a failure to grant legal representation will not of itself render a dismissal unfair.

For further clarification of this or any other matter relating to employment law in schools or other education establishments, clients should call the specialist Education Team on 0844 892 2810.