The UK Supreme Court has decided that a teaching assistant was not after all entitled to legal representation at disciplinary proceedings related to allegations of sexual misconduct with a child.
Employers will be relieved that in most ordinary cases, disciplinary hearings will not now have to become overly legalistic where ‘fitness to practise’ issues might follow on. This appears to be consistent with the UK approach to employment legislation over the past 40 years under which internal employment procedures are supposed to be capable of being conducted by the parties themselves.
There may, however, still be limited circumstances, perhaps where the employer’s decision to dismiss will have a substantial influence over the employee’s ability to continue to practise, where an employee might still be entitled to be legally represented at disciplinary hearings.
Employers should also note that the fitness to practise issues might still influence other aspects of their conduct of disciplinary hearings. For example, when someone’s professional future is potentially at stake, an employment tribunal might expect somewhat more by way of investigation than might be required in other situations.
There also remains the practical problem that if you unfairly dismiss an employee who is then unable to get a comparable job as a result (for example) of the dismissal being reported to a regulator, then the employee is likely to have a more significant loss of earnings claim.
It is always advisable to obtain detailed specialist advice if you are in any doubt about whether someone may be entitled to legal representation at a disciplinary hearing, because regulatory action may not always be clearly distinguishable from your own processes. Additionally, we would recommend that full advice is taken where a knock-on effect of your decision could be that someone is unable to work in their field for a lengthy period. As always, Just Employment Law is well placed to assist you in dealing with such issues.