The High Court has decided that in ‘certain circumstances’ an employee is entitled to be represented by a solicitor at an internal disciplinary hearing.
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.