There have been a few changes recently that seem to have ‘muddied the waters’ as far as an employee’s rights to be accompanied at disciplinary hearings is concerned.
Up until now, the advice from the employment team to businesses who had questions about the right to be accompanied at internal disciplinary hearings used to be relatively clear and simple:
- Is it a disciplinary hearing or just an investigatory hearing? If it’s just an investigatory meeting then the employee does not have any right to be accompanied and the great advantage of an investigatory meeting is that you can use the element of surprise to your benefit and you can spring it on the employee with no notice and without concerning yourself with the issue of companions.
- If it’s a disciplinary hearing, what type of hearing is it? If it’s a capability or misconduct hearing then the right to be accompanied will apply but if it’s a redundancy hearing then technically there is no statutory right to be accompanied and it would then be up to the employer and their own policies and procedures as to whether they wish to offer the employee the right to be accompanied.
- Who should the companion be? The statutory right is for the employee to be accompanied by a trade union representative or a fellow worker only – the last thing that you want is for the member of staff to bring their lawyer along!
This all seems fairly straightforward. However, in light of a number of recent cases, we are advising employers to treat with some care in responding to requests by their staff either for a companion at an investigation meeting or a lawyer (or some other representative) at a disciplinary hearing.
Here’s what you need to know:
- Legal representation? As set out above, there is no general right under UK law for an employee to have a qualified legal representative at a disciplinary hearing; only a work colleague or trade union representative. However, some employees (for example, NHS hospital doctors) may have a right under their contracts of employment to legal representation.
- If the employee is disabled it may well be a reasonable adjustment to allow them to be accompanied by someone other than a colleague or union representative. In theory this could include a lawyer.
- Employees may be able to establish a right to legal representation as a result of the Human Rights Act 1998 which enshrines Article 6 of the European Convention on Human Rights (the right to a fair trial) into UK law. This would in practice only apply where the outcome of the disciplinary proceedings would have a “substantial influence” on a decision of the regulatory body (or similar) that has the power to bar someone from their profession.
Earlier this year, ACAS amended its non-statutory guidance to make it clear that employers can allow workers to be accompanied by companions who are not trade union representatives or work colleagues.
It did not, however, amend the Code of Practice as it did not wish to create a burden on employers, but clearly employers will always be in a position to exercise their discretion when deciding whom to allow as a companion.
In most cases these requests should still be able to be resisted but it is clear that there may be some circumstances in which the presence of a technical expert at a disciplinary or investigatory hearing could enhance the overall fairness of the process by aiding the understanding of those conducting the hearing.
Employers should be aware of the potential seriousness of allowing employees to attend such hearings unaccompied, especially where the stakes are high and the matters under discussion complex or technical.
