Employment Law Update (April 2009)
Can a worker insist on bringing legal representation to an
internal disciplinary hearing?
With the repeal of the statutory dispute resolution procedures
and the implementation of the new ACAS Code of Practice on
6th April, nothing has changed about the rights
employees have to be accompanied at internal disciplinary,
grievance and appeal hearings. Employees have the right to be
accompanied by a work colleague or a duly certificated trade union
official, and this right has now been in place for ten years.
Although this is well understood, employers are sometimes faced
with employees who wish to bring a non-employee to a disciplinary
or grievance hearing. In some cases, employees ask to bring a
legally qualified representative with them and employers are often
rightly concerned that allowing this will shift the balance too far
in the employee's favour. Under the law, in the vast majority
of cases the employer does not have to allow this.
Human Rights invoked
However, in a recent case brought under Human Rights law, an
employee in a school was successful in claiming that he should be
allowed legal representation at an internal disciplinary hearing.
The reason was that the employee had been accused of having an
inappropriate relationship with a child. If the employer
decided to dismiss the employee at the disciplinary hearing, the
employer was also obliged to notify the authorities, which was
likely to lead to the employee being prevented from working with
children again.
The Court decided that the placing of a person's name on a
barred list was the kind of penalty that only courts could normally
be expected to impose, and defendants would have the right to legal
representation in court. It therefore followed that an
employee faced with internal disciplinary proceedings that could
result in his or her name being placed on a barred list should be
permitted legal representation at that hearing if he or she asked
for it.
As is always the case, the full implications of the ruling will
take some time to become clear, but in the meantime, employers who
have a legal duty to notify the authorities if they dismiss an
employee in certain circumstances should take advice from the
Telephone Advice Service before starting disciplinary action.
What this means
- The ruling could particularly affect businesses in the
education or care sectors;
- It will only apply where serious allegations have been made
against an employee which would mean the employer must
automatically notify the authorities if they dismiss the
employee;
- There is no need to specifically tell the employee that he or
she has the right to legal representation.