Right to Be Accompanied by a Legal Representative at a Disciplinary Hearing

Most Employers will be aware that employees are legally entitled to be accompanied at a disciplinary hearing by a union representative or a work colleague. There is no similar entitlement to legal representation and most employers do not allow legal representation at internal hearings.

A recent case has highlighted there maybe occasions when an employee may have the right to legal representation.

The case centered on a teacher against whom there was a child protection allegation and if there was dismissal, this required a referral to the Independent Safeguarding Authority. The question in this case was whether a teacher at risk of being barred was entitled to legal representation at a disciplinary hearing under Article 6 of the European Convention on Human Rights, because a dismissal could have consequences beyond the loss of a job.

The Decision: The High Court ruled that as the school was required to have regard to Article 6 because their internal proceedings were part of the same process as the Secretary of State's procedures for making a finding of unsuitability to work with children. Therefore, the claimant should have been entitled to legal representation. This was later confirmed by the Court of Appeal

Impact on Social Care Employers
Whilst this case does not open the floodgates for employees to be legally represented, the case is very important to Employers where professions are regulated such as social care.

The ruling only applies to the most serious misconduct allegations where a barring could result. It will not apply to capability or ill-health dismissals and there are no implications for these procedures.

Employers may wish to amend their disciplinary procedures and if you receive a request for legal representation you may want to seek legal advice on whether this case applies.

New Guidance for Fit to Work" Notes
Click her to read the full guidance given by the DWP.
http://www.dwp.gov.uk/fitnote/Right