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Representation at disciplinary hearings One of our employer clients was recently informed by an employee that his solicitor could represent him at a disciplinary hearing “because the law has changed”. Is that correct? The short answer is: No. The position is still that an employee has statutory entitlement to representation by a work colleague or trade union representative. Any other representation would be at the employer’s discretion only. However, this employee may have come across reference to a recent case in which a teaching assistant (G) was dismissed for an alleged inappropriate relationship with a pupil. G had asked for legal representation at the hearing which resulted in his dismissal but this had been denied and statutory representation allowed instead. Any teacher dismissed for G’s offence or for similarly serious misconduct will almost certainly be prohibited from teaching children again. There would be similar results for other employees dismissed for serious misconduct, for example members of the medical and nursing professions, solicitors, and social workers. The effect of a dismissal in those circumstances would therefore be not just to end one employment relationship, but to end an entire career. G asked the High Court to review the refusal of legal representation, relying on s6 of the European Convention of Human Rights. In brief, the court decided that G should have been allowed legal representation, because the effect on his career of such a dismissal meant that he was entitled to ‘an enhanced measure of procedural protection’, which would not have been provided by a simple finding of unfair dismissal. (Whilst a private sector employee would not be able to rely so directly on the Convention, he/she could still argue while claiming e.g. unfair dismissal that the domestic law should be interpreted in a way compatible with the Convention.) While therefore, at the vast majority of disciplinary hearings, there will be no need to go beyond statutory representation, in circumstances where a potential dismissal could result in permanent exclusion from being a professional practitioner; it may be wise to allow an employee to be legally represented at any disciplinary proceedings. The case in question (R on the application of G v The Governors of X School) is being appealed to the Court of Appeal, so we will update you any future judgements. Caroline Johnstone Employment Consultant |