Disciplinary meetings – Is an Employee entitled to legal representation?

Employees who are the subject of disciplinary proceedings should routinely be allowed to be accompanied, if they wish, by a fellow colleague of their choosing.

Not only has this grown to be almost customary, it is enshrined in the ACAS Code for dealing with disciplinary matters, which all employers are encouraged to follow (the Code is not binding but it certainly represents best practice).

Should an employee be allowed to go a step further and insist on legal representation during such hearings?

A number of cases have come before the Courts and Employment Tribunals of late where this issue has arisen. The employees involved in those cases have argued that to deprive them of such an entitlement would be in breach of the European Convention on Human Rights, which, in part, guarantees the individual a right to have a fair, impartial and unbiased ‘trial’.

In truth, the answer is – as with so many other legal issues – not entirely straightforward. It was found in one particular Court of Appeal case, Kulkarni (2009) that legal representation is allowed during disciplinary proceedings if those proceedings have ‘career-ending’ potential. What the Court was saying, therefore, is that every situation is different and not all employees can demand the right to have a solicitor or other legal representative present at a hearing. It is probably right to say that, in a fair number of situations, the employer does not have to allow a lawyer to be present. That is not to say, however, that no employee is ever entitled to be legally represented at such hearings.

Clearly, it is very important that every request for legal representation is considered by employers carefully and that snap decisions are avoided. The position, as outlined above, is not as simple as one might expect.

John is a partner at Leonard Gray. He is a Business & Commercial Property lawyer with over 15 years’ qualified experience in dealing with a variety of industrial, property and landlord and tenant matters. John is also an ADR Group accredited civil, commercial and family mediator.