Right to Legal Representation at Internal Disciplinary Hearings
Email Update 45
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 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 a finding adverse to the employee may affect their ability to pursue their profession in the future, an employer may have to consider allowing legal representation.
An example of a situation where care will be required may involve a Nurse who was facing allegations of gross negligence or malpractice, where there was a possibility that the Regulatory body, the Nursing and Midwifery Council, may ‘strike off’ the Nurse from the Roll. If the Nurse in those circumstances asked for legal representation at an internal disciplinary hearing, that request perhaps ought to be granted.
That said, in the vast majority of cases an employer need not 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. Just Employment Law is well placed to provide you with advice and guidance that you may require.
You can access the full text of the Judgment by clicking on the link below:
http://www.bailii.org/ew/cases/EWHC/Admin/2009/504.html
