It has recently been reported that the Education Secretary, Nadhim Zahawi, is considering plans to amend the Employment Relations Act 1999 to give teachers the statutory right to be accompanied to grievance and disciplinary hearings by an external lawyer or representative of a body other than a trade union.
These comments seem to have originated from a written question to parliament from Steve Baker, MP who asked the Secretary of State for Education, “what steps the Government is taking to help ensure that teachers and other education staff can choose to be accompanied to disciplinary or grievance hearings by a person other than a trade union representative or colleague”.
Mr Baker’s question was answered by Robin Walker, MP on 25 April 2022 who confirmed that the Secretary of State for Education “is supportive in principle of a change to the Employment Relations Act 1999 to give teachers who are not members of a trade union the right to be accompanied by a representative of another professional body, such as Edapt, to disciplinary and grievance meetings”.
It appears that the plans referred to only apply to teachers, although it is unclear if they would be extended to other education staff or other sectors. Whilst the move is intended to strengthen the rights of teachers who are not trade union members, it would be an unwelcome development for many employers as it is likely to damage employee relations and make disciplinary and grievance situations more protracted. The good news for employers is that there is no indication from the Government that any change will be implemented any time soon. However, we take the opportunity to consider the current law on the right to be accompanied and if there are any circumstances when an employee has the right to legal representation at a disciplinary or grievance hearing.
What is the right to be accompanied?
Under s.10 of the Employment Relations Act 1999 all workers (and employees) have a statutory right to be accompanied by a fellow worker or trade union official where they are required or invited by their employer to attend any formal disciplinary or grievance hearing. Fellow workers or trade union officials are not obliged to agree to accompany a worker, and they should not be pressurised into doing so.
The right to be accompanied applies to any disciplinary hearing which could result in a formal warning being given to the worker, the taking of some other disciplinary action against the worker by the employer (such as suspension without pay, demotion or dismissal) or the confirmation of a warning issued or some other action taken. This, therefore, includes appeal hearings.
Informal discussions, counselling sessions and investigatory meetings do not attract the right to be accompanied, unless the meeting could result in a formal warning or other disciplinary action.
The Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) was updated following the decision in Toal and another v GB Oils Ltd  IRLR 696 to make it clear that employers are not entitled to deny a worker’s choice of companion if that companion is drawn from one of the statutory categories, namely “a fellow worker, a trade union representative, or an official employed by a trade union”.
To exercise the statutory right to be accompanied, workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. The Acas Code says that a request to be accompanied does not have to be in writing or within a certain timeframe. However, a worker should provide enough time for the employer to deal with the companion’s attendance at the meeting. Workers should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion, where possible, and whether they are a fellow worker or trade union official or representative.
If a worker’s chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker, provided that the alternative time is both reasonable and not more than five working days after the date originally proposed.
At the hearing itself, the worker's companion must (if the worker wishes) be allowed to:
address the hearing
put and/or sum up the worker’s case
respond on behalf of the worker to any views expressed at the hearing
confer with the worker during the hearing.
The companion may not answer questions in place of the worker (the employer has the right to expect the worker, and not their companion, to answer any questions put to them during the hearing).
Do employees have the right to be accompanied by an external lawyer?
Some employers may allow people other than fellow workers and trade union officials to accompany an employee (for example, a partner, spouse or legal representative). Whether an employee has a right to bring someone other than a colleague or trade union representative along to a disciplinary hearing will usually depend on the terms of their contract of employment. In Kulkarni v Milton Keynes Hospital Foundation NHS Trust  IRLR 829, the Court of Appeal held that an NHS hospital doctor was contractually entitled to be represented by a lawyer at a disciplinary hearing.
For disabled employees it could be a reasonable adjustment under the Equality Act 2010 to agree to a request to be accompanied by someone other than a fellow worker or trade union representative, such as a relative or friend. Whether it would be a reasonable request for a disabled employee to be accompanied by a lawyer is likely to depend on the individual circumstances of the case.
There has been case law where the employee has sought to establish a right to legal representation at a disciplinary hearing by invoking the right to a fair trial under Article 6 of the European Convention on Human Rights. Article 6 provides that “everyone is entitled to a fair and public hearing” in the determination of their civil rights and obligations and of any criminal charge against them. Article 6 is enshrined into UK law by the Human Rights Act 1998.
In R (G) v Governors of X School  UKSC 30, a teaching assistant claimed that his rights under Article 6 were breached when he was denied legal representation at the school’s internal disciplinary hearing. The Supreme Court held that an employee would have the right to legal representation at a disciplinary hearing where the outcome of the disciplinary proceedings would determine or have a “substantial influence” on a subsequent decision where the employee could be barred from their profession, ie by a regulatory body. However, in this case the Supreme Court decided that Article 6 was not engaged, as the outcome of the disciplinary hearing would not have a substantial influence on the decision of the Independent Safeguarding Authority whether to put the employee on the children’s barred list.
Although no cases have been successful under Article 6, this does not prevent employees from seeking to rely on Article 6 when making requests to be accompanied by an external lawyer at disciplinary or grievance hearings. Employers should carefully consider such requests and the individual circumstances before deciding what approach to take.