Not if they work for a private sector employer. The position will usually be the same for public sector employees.
The Employment Relations Act 1999 provides that workers have the right to be accompanied by a trade union official or a fellow worker at any disciplinary hearing, but not by a lawyer. But that is not quite the end of the story. In recent years there have been a number of cases (generally involving public sector employees) in which employees have argued that they should be entitled to legal representation at disciplinary hearings if the outcome could have serious implications for their career. The position has now been clarified following the Supreme Court’s decision earlier this month in R (on the application of G) v The Governors of X School in which it said that an employee did not have the right to be legally represented at a disciplinary hearing.
The key issue in this case was whether the School’s decision not to allow a teaching assistant to be legally represented at a disciplinary hearing involving allegations of inappropriate behaviour with a 15 year old boy breached his human rights, in particular his right to a fair trial under Article 6 of the European Convention on Human Rights.
The right to a fair trial is only triggered in proceedings where an individual’s civil rights are being determined. The civil right in question in this case was the employee’s right to practise his profession as a teaching assistant and work with children generally. The nature of the allegations against the employee meant the School had a duty to inform the Independent Safeguarding Authority (ISA) of the outcome of the disciplinary proceedings. This could have resulted in the employee being prohibited from working with children indefinitely, effectively bringing his teaching career to an end. The employee argued that because the outcome of the disciplinary proceedings would have a powerful influence on any subsequent ISA proceedings, he was entitled to legal representation in both proceedings.
The Supreme Court disagreed. It said, by a majority, that the right to a fair trial did not apply to the disciplinary proceedings. It accepted that it applied to any proceedings before ISA, but said it was not the function of the School to determine the civil right in issue. Rather, it was only concerned with the employee’s employment at the school and that its disciplinary proceedings did not trigger Article 6.
The Supreme Court did not go so far as to say that employees will never be entitled to legal representation at a disciplinary hearing. It seems that Article 6 could be engaged if the disciplinary proceedings in question would determine an employee’s right to work in his chosen field. In the vast majority of cases this will not be the case, as disciplinary proceedings usually only determine an employee’s right to work for a particular employer.