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Legal Representation at Disciplinary or Grievance Hearings
A question that is often asked by our Employer clients is whether in the course of a disciplinary proceeding, an employee is entitled to bring along their Solicitor as the accompanying person.
The answer to the question is invariably no, since there is no general right under UK Law for an employee to have a qualified legal representative accompany them to a disciplinary hearing. There may be a contractual right to allow such accompaniment, but such contractual rights are rare in practice.
Workers have a statutory right to be accompanied by a Trade Union Representative or a fellow worker at a disciplinary hearing. A disciplinary hearing for the purposes of this particular right is a hearing that: could result in formal warnings being given, or the taking of some other disciplinary action, for example a suspension without pay, demotion or dismissal.
If there is no contractual right for legal representation, employers will, and understandably so, be extremely reluctant to allow anyone other than a Trade Union Representative or a work colleague to accompany employees to these meetings.
There has been a line of case law recently where employees have sought to assert a right to have legal representation at a hearing; normally relying on Article 6 of the European Convention on Human Rights (ECHR) and invoking the right to a fair trial.
Article 6 of the ECHR provides that when civil rights are being determined, everyone is entitled to a fair hearing by an independent and impartial tribunal established by law. In recent cases where employees have sought to argue a right to have legal representatives present, the line of reasoning has been that Article 6 should be engaged.
This can only be used if the outcome of the disciplinary proceeding would “substantially influence” the decision of another body in determining the individuals civil rights e.g. a teacher who is being disciplined may in certain circumstances (dependant on the outcome of the disciplinary hearing) then have their case referred to the General Teaching Council.
A further example in this regard would be a Doctor who is subject to disciplinary proceedings and who may then have their case referred to the General Medical Council. Post disciplinary hearing, there is a chance in such circumstances that the Doctor could be struck off and therefore could be prevented from practising in the profession in the future.
In this regard the right to practice ones profession is a civil right that may engage Article 6.
Although the Court of Appeal has found that an employer disciplining an employee is not necessarily “determining a civil right”, the Supreme Court has held that Article 6 may nevertheless be engaged where the outcome of the disciplinary proceedings would have a “substantial influence” on subsequent proceedings which determine a civil right. In the examples above this is of course the referral to the General Medical Council or the General Teaching Council.
That said however, the General Medical Council has been recognised by the Courts as sufficiently independent in its approach; so as not to be influenced by earlier decisions on disciplinary matters.
It should be also be noted that merely engaging the argument that Article 6 may apply does not in itself guarantee the right to legal representation. The present thinking is that the seriousness of the allegation or charge will eventually govern whether Article 6 is in fact engaged; therefore whether an employee may then be accompanied by a legal representative.