Do I have the right to Legal Representation at Internal Disciplinary Hearings?

All employees have the right to be accompanied at internal disciplinary hearings. 

It is also worth checking your staff handbook, contract of employment or disciplinary procedure because some employers will allow other individuals such as friends or spouses to accompany you.

The ACAS Code of Practice on Disciplinary and Grievance Procedures states that employees should make a ‘reasonable request’ to their employers to exercise the right to accompaniment. It also says that it would not normally be reasonable to be accompanied by someone who would prejudice or disrupt the meeting. Companions can address the meeting but cannot answer questions on your behalf.

However most employers will not allow a legal representative - such as a solicitor to attend. The recent case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust may be about to change this in limited circumstances. Mr Kulkarni was accused of improperly touching a patient and he was not allowed legal representation at the disciplinary hearing. He appealed and argued that his right to a fair trial had been infringed. The Court of Appeal agreed with him.

In another case, R v The Governors of X School, it was held that a school teacher was allowed legal representation at a disciplinary hearing because a consequence of the hearing could be that they would be added to the register of individuals who are deemed unsuitable to work with children.

It is highly unlikely that the right to legal representation is going to be given in all cases where employees have a disciplinary hearing. It is only likely to be applied in cases where there are potentially serious consequences such as never being allowed to work in your chosen profession, having your name added to the list of individuals who are unsuitable to work with children or if criminal liability could result.

These decisions are really only relevant to public sector employees because the Human Rights Act 1988 is only enforceable against public authorities such as the NHS. However private sector employees may try to argue that they should also be allowed legal representation at disciplinary hearings where they could lose their job and the loss of a professional authorisation – such as under the Financial Services Authority Regime.

If you would like any further information on this area of law please contact the Employment Law team at Ascot Lawyers on 0845 300 3574.

Please note that this is only intended to be a general guide and is not intended to be a substitute for specific legal advice.

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