Employees will not be permitted legal representation at internal disciplinary hearings if the employer's rules expressly forbid this. The implied term of trust and confidence could not be used to override the express prohibition.
An employer was able to rely on its internal rules prohibiting an employee having a lawyer as a companion, even though the employee's entire professional career was at stake.
Workers have a statutory right to be accompanied at disciplinary (or grievance) hearings only by a trade union official or a work colleague. The case does suggest that in certain limited situations it might be possible to use the implied term of trust and confidence to give employees a right to other representation – unless this is expressly disallowed in the employer's rules.
Employers may wish to review their disciplinary and grievance policies and include a clear prohibition on legal representation. Employers will still need to consider whether to permit alternative companions (such as a spouse or carer) as a reasonable adjustment for disabled employees. (Kulkarni v Milton Keynes Hospital, HC)