01-03-2010
In the spotlight... disciplinary hearings: the right to representation
Issues around the right to be accompanied at a disciplinary hearing have been keeping the courts busy of late, making it timely for us to look at the current stance on employees’ rights and employers’ obligations
Statutory right to be accompanied
On a basic level, where a staff member is required by his employer to attend a disciplinary or grievance hearing and he reasonably requests to be accompanied at that meeting, an employer must allow him to bring one person along.
Who can accompany a worker?
Under statute and the new ACAS Code, an employee has the right to be accompanied by:
• an employed trade union official;
• an official of a trade union who is not employed by the union, but whom the union has certified as having experience in acting as a companion at disciplinary or grievance hearings; or
• a colleague.
What is a reasonable request?
A request to be accompanied does not have to be made in writing and what is reasonable depends on the circumstances of the individual case.
The ACAS Code provides some guidance to assist us. It states that it is not normally reasonable for workers to insist on being accompanied by a companion, whose presence would prejudice the hearing. The code goes further to state that it would also not be reasonable for an employee to ask to be accompanied by a companion from a different site of the company, if someone suitable and willing was available on the same site as the employee.
What is the role of the companion?
The companion is there to assist the employee subject to the hearing. This can involve addressing the room in order to put the worker’s case and responding on the worker’s behalf to any views expressed at the hearing, as well as conferring with the worker during the meeting. The ACAS Code states that it is good practice to allow the companion to participate as fully as possible in the hearing, including asking witnesses questions.
However, the companion is not permitted to answer questions on behalf of the employee, or address the hearing if the employee indicates that they do not wish the companion to do so. Also, the companion cannot prevent the employer from explaining its case, or any other person at the hearing from making a contribution. This stipulation should be noted when dealing with a feisty companion.
Is a companion entitled to paid time off?
Provided the companion is employed by the same organisation as the member of staff they are accompanying, they are entitled to paid time off during working hours. If payment is not made to a companion, they have a stand alone right to bring a tribunal claim.
When is an employee entitled to be accompanied by a companion?
Under the ACAS Code, an employee is entitled to be accompanied by a companion at any stage. This includes meetings where a formal warning is likely to be issued to the worker and where other action is taken by an employer in relation to a worker, such as dismissal or demotion. Employees are also entitled to be accompanied at grievance or appeal hearings. A grievance meeting is defined in the ACAS Code as “a meeting which deals with the complaint about a duty owed by the employer to the worker”.
New right to legal representation?
There have been a number of cases recently discussing the right for workers to be represented by solicitors at internal disciplinary hearings.
• In Kulkarni v Milton Keynes Hospital NHS Foundation Trust and Another, a junior doctor accused of misconduct was found to be entitled, under his contract of employment, to legal representation at internal hearings. The Court of Appeal also commented that where an employee is facing what amounts to a criminal charge, Article 6 of the European Convention on Human Rights (ECHR) may provide a right to legal representation. This Article establishes an entitlement to a fair hearing within a reasonable time and gives those charged with a criminal offence the right to legal assistance.
Such a right will not arise where employees are only at risk of losing their jobs. For it to be invoked the potential outcome of the proceedings would need to be more serious, perhaps preventing an employee from practicing their chosen career by being legally barred, as in the case of a doctor being struck off.
• In Governors of X School v R (on the application of G), a music teaching assistant was dismissed for abusing his position of trust following allegations of sexual misconduct with a 15 year old work experience student. Here, the employee’s job and career were at stake. Additionally, if the allegations were upheld, he would have been listed on a statutory register as unsuitable to work with children.
The Court of Appeal found that this situation attracted the protection of Article 6 of the ECHR. This was on the basis that the nature of the allegations prompting the disciplinary investigation, if true, gave rise to an obligation to report the incident to the Secretary of State for Children, Schools and Families, who would ultimately determine whether he should be prohibited from working with children in any educational capacity.
The ability to practice one’s profession was deemed a fundamental civil right, which clearly had Article 6 implications. Additionally, the court considered that the findings from the internal hearing would be relied upon heavily in the investigation and subsequently by the Secretary of State. As such, he was entitled to legal representation at the internal meetings.
However, that’s not to say every employee is entitled to legal presentation at a disciplinary hearing. The crucial distinction in these cases is that the employees were at risk of not being able to practice their profession elsewhere or at all, or of having criminal proceedings brought against them. It is only in such circumstances that an internal hearing might be determinative of a civil right and, as such, Article 6 of the ECHR would apply.
It is also worth bearing in mind that these cases refer to employees working in the public sector. The public sector is directly bound by the ECHR, whereas private companies are not. Until an employee of a private company tests this case law, we will not know if the same right applies.
Your policies
Our advice at this time is that all employees are allowed to be accompanied by a trade union representative or work colleague only and that policies should reflect this. Of course, in reality, this can sometimes be expanded to include family members or friends, depending on the case you are dealing with. However, care should be taken to avoid setting a precedent.
We do not currently recommend that you revise your policies to give workers the right to be accompanied by legal representatives. From experience, due to the adversarial nature of legal representatives, the internal hearing is likely to become more confrontational.
This is clearly a hot topic and is likely to change again over the coming months. We will keep you informed of any developments as they arise.
Statutory right to be accompanied
On a basic level, where a staff member is required by his employer to attend a disciplinary or grievance hearing and he reasonably requests to be accompanied at that meeting, an employer must allow him to bring one person along.
Who can accompany a worker?
Under statute and the new ACAS Code, an employee has the right to be accompanied by:
• an employed trade union official;
• an official of a trade union who is not employed by the union, but whom the union has certified as having experience in acting as a companion at disciplinary or grievance hearings; or
• a colleague.
What is a reasonable request?
A request to be accompanied does not have to be made in writing and what is reasonable depends on the circumstances of the individual case.
The ACAS Code provides some guidance to assist us. It states that it is not normally reasonable for workers to insist on being accompanied by a companion, whose presence would prejudice the hearing. The code goes further to state that it would also not be reasonable for an employee to ask to be accompanied by a companion from a different site of the company, if someone suitable and willing was available on the same site as the employee.
What is the role of the companion?
The companion is there to assist the employee subject to the hearing. This can involve addressing the room in order to put the worker’s case and responding on the worker’s behalf to any views expressed at the hearing, as well as conferring with the worker during the meeting. The ACAS Code states that it is good practice to allow the companion to participate as fully as possible in the hearing, including asking witnesses questions.
However, the companion is not permitted to answer questions on behalf of the employee, or address the hearing if the employee indicates that they do not wish the companion to do so. Also, the companion cannot prevent the employer from explaining its case, or any other person at the hearing from making a contribution. This stipulation should be noted when dealing with a feisty companion.
Is a companion entitled to paid time off?
Provided the companion is employed by the same organisation as the member of staff they are accompanying, they are entitled to paid time off during working hours. If payment is not made to a companion, they have a stand alone right to bring a tribunal claim.
When is an employee entitled to be accompanied by a companion?
Under the ACAS Code, an employee is entitled to be accompanied by a companion at any stage. This includes meetings where a formal warning is likely to be issued to the worker and where other action is taken by an employer in relation to a worker, such as dismissal or demotion. Employees are also entitled to be accompanied at grievance or appeal hearings. A grievance meeting is defined in the ACAS Code as “a meeting which deals with the complaint about a duty owed by the employer to the worker”.
New right to legal representation?
There have been a number of cases recently discussing the right for workers to be represented by solicitors at internal disciplinary hearings.
• In Kulkarni v Milton Keynes Hospital NHS Foundation Trust and Another, a junior doctor accused of misconduct was found to be entitled, under his contract of employment, to legal representation at internal hearings. The Court of Appeal also commented that where an employee is facing what amounts to a criminal charge, Article 6 of the European Convention on Human Rights (ECHR) may provide a right to legal representation. This Article establishes an entitlement to a fair hearing within a reasonable time and gives those charged with a criminal offence the right to legal assistance.
Such a right will not arise where employees are only at risk of losing their jobs. For it to be invoked the potential outcome of the proceedings would need to be more serious, perhaps preventing an employee from practicing their chosen career by being legally barred, as in the case of a doctor being struck off.
• In Governors of X School v R (on the application of G), a music teaching assistant was dismissed for abusing his position of trust following allegations of sexual misconduct with a 15 year old work experience student. Here, the employee’s job and career were at stake. Additionally, if the allegations were upheld, he would have been listed on a statutory register as unsuitable to work with children.
The Court of Appeal found that this situation attracted the protection of Article 6 of the ECHR. This was on the basis that the nature of the allegations prompting the disciplinary investigation, if true, gave rise to an obligation to report the incident to the Secretary of State for Children, Schools and Families, who would ultimately determine whether he should be prohibited from working with children in any educational capacity.
The ability to practice one’s profession was deemed a fundamental civil right, which clearly had Article 6 implications. Additionally, the court considered that the findings from the internal hearing would be relied upon heavily in the investigation and subsequently by the Secretary of State. As such, he was entitled to legal representation at the internal meetings.
However, that’s not to say every employee is entitled to legal presentation at a disciplinary hearing. The crucial distinction in these cases is that the employees were at risk of not being able to practice their profession elsewhere or at all, or of having criminal proceedings brought against them. It is only in such circumstances that an internal hearing might be determinative of a civil right and, as such, Article 6 of the ECHR would apply.
It is also worth bearing in mind that these cases refer to employees working in the public sector. The public sector is directly bound by the ECHR, whereas private companies are not. Until an employee of a private company tests this case law, we will not know if the same right applies.
Your policies
Our advice at this time is that all employees are allowed to be accompanied by a trade union representative or work colleague only and that policies should reflect this. Of course, in reality, this can sometimes be expanded to include family members or friends, depending on the case you are dealing with. However, care should be taken to avoid setting a precedent.
We do not currently recommend that you revise your policies to give workers the right to be accompanied by legal representatives. From experience, due to the adversarial nature of legal representatives, the internal hearing is likely to become more confrontational.
This is clearly a hot topic and is likely to change again over the coming months. We will keep you informed of any developments as they arise.
