In terms of the Employment Relations Act 1999, a employee has the right to be accompanied to a disciplinary meeting by a work colleague or a trade union representative. On many occasions, employees have attempted to persuade their employer to allow other people to be the companion. Often this involves efforts to be allowed to be accompanied by a legal representative. Given the possible complications and problems, the presence of such a person might cause the employer, the request is almost always rejected.  

Two recent decisions suggest that a right to legal representation at internal disciplinary meetings may be a legal right in some circumstances. While the law still requires to be fully clarified, this is a potentially significant change.  

In R (on the application of G) v The Governors of X School and Anor [2009] EWHC 504, the Claimant was a teacher at the Respondent school. Disciplinary procedures were commenced against him after he allegedly kissed a 15 year old boy. The Claimant was dismissed. As a result of the dismissal, the school was under a duty to report the teacher to the Secretary of State for Children, Schools and Families who would then determine whether he should be entered on a register of people who are unsuitable to work with children. The Claimant’s request for legal representation at the internal disciplinary meeting was refused. Therefore, the Claimant sought a judicial review against the school on the grounds that the refusal to permit legal representation at an internal disciplinary hearing was a breach of the right to a fair trial provided for in Article 6 of the European Convention on Human Rights (“ECHR”).  

The High Court held that the school should have regard to Article 6 of the ECHR and that the school’s internal disciplinary procedures should be viewed as part of the same procedure as the Secretary of State’s procedure for determining whether someone should be entered onto the register. Due to the severe consequences of the Claimant’s dismissal, the court held that the Claimant was entitled to legal representation at the internal disciplinary meeting. The school has been granted the right to appeal the decision to the Court of Appeal.  

In Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789, the Court of Appeal held that a doctor had a contractual entitlement to be represented by a lawyer. What makes the decision important is that the court also stated that Article 6 of the European Convention on Human Rights was applicable given the nature of the charges against the employee. In this case, the doctor was accused of conduct that could have amounted to an assault. As a result, the right to legal representation was implied.

While these decisions may have limited remit within the public sector, it now appears that there is a apparent exception to the general rule that an employee is not entitled to legal representation at an internal disciplinary meeting. The extend of when the right is triggered remains to be fully explored but in the meantime, employers should consider carefully before they automatically refuse an employee’s request to be accompanied by a legal representative.