Last reviewed 14 June 2023
What happens if the outcome of a disciplinary hearing could lead to the loss of a vocation, leaving the employee barred from their profession? Do the normal rules on the right to be accompanied apply or can the employee bring in their lawyer? In this third article in our “right to be accompanied” series of articles, we look in more detail at what happens to the right to be accompanied in special cases.
Last year, Robin Walker MP 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”.
This appeared to be intended to strengthen the rights of teachers who are not trade union members. This movement away from trade unions would seem to be particularly fitting this year, with numerous schools closed due to strike action and the passage of the Strikes (Minimum Service Levels) Bill through Parliament. However, nothing further has been said on this matter since the original parliamentary response in April 2022, indicating that any change will not be implemented any time soon.
Nevertheless, we take this 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.
Accompaniment by an external lawyer
Some employers may allow people other than fellow workers and trade union officials to accompany an employee (eg 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 NHS Foundation 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.
There has also 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 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 of 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.
Accompaniment by an alternative companion
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.
In Cave v Goodwin  EWCA Civ 391, the employment tribunal (ET), at first instance, commented that a rule that limits an employee’s right to be accompanied to the statutory wording could have the “effect of placing a disabled person at a substantial disadvantage”. It was clear to point out, however, that the test to be applied is not merely that the disabled employee would have liked it another way (ie with their alternative companion), but that the arrangements made by their employer caused them to be at a substantial disadvantage. Were this to be the case, the ET went on, then the employer would be under a duty to take steps to prevent that effect.
The right to be accompanied is an important part of procedural fairness, giving the employee the best chance they can have at presenting themselves in the way that they want. As such, any requests to have an alternative companion should be considered fairly and with a detailed examination as to the employee’s reasons for making such a request. Should such a request be denied, employers should still try to find a way to ensure the employee is supported in the way that they want and need, within the confines of the statutory right.