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Right to legal representation at disciplinary proceedings

Posted on 26th July 2011
Case law

When can an employee insist on being legally represented at a disciplinary hearing? This was the question the Supreme Court recently looked at.

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Simon Quantrill Simon
Quantrill
Managing Partner Telephone: 01473 688100

public sector employees will not regularly be able to insist on legal representation

R (on the application of G) v Governors of X School

Background

An employee only has the right to request he or she be accompanied by a fellow worker or suitably qualified trade union official at a disciplinary or grievance hearing (see section 10 Employment Relations Act 1999).

The Supreme Court had to consider how far Article 6 (the right to a fair trial) of the European Convention on Human Rights allows an employee to be legally represented at a disciplinary hearing.

The decision

The Court decided that Article 6 does provide a right to legal representation at disciplinary hearings but only in relation to public employers (e.g. local authorities, NHS and the Civil Service) and where the outcome of the disciplinary proceedings will have a substantial influence on the subsequent determination of the employee's civil rights. An example would be where a doctor is accused of gross misconduct and the outcome of the disciplinary hearing could lead to his dismissal and also to the loss of his licence to practice medicine. This means that public sector employees will not regularly be able to insist on legal representation.

The Supreme Court's decision was influenced by a policy decision that it would go against the statutory rights to be accompanied to let employees be legally represented. The Court was concerned that if this happened disciplinary hearings would become too legalistic and take more time to complete.

In practice

Public sector employers should take early advice if and when they are faced with a request to allow an employee to be legally represented. The employee will need to satisfy the test laid down in the above case. If the employee is unhappy about a refusal, the remedy is to apply for a judicial review of the employer's decision. This is an expensive and time consuming step for both the employee and employer. 

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