Parliament recently faced the question ‘what steps are the government taking to help ensure that teachers and other education staff can choose to be accompanied to hearings by a person other than a trade union representative or workplace colleague?’. The Education Secretary Nadhim Zahawi said that he is considering plans to amend the Employment Relations Act 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.
Under the Employment Relations Act employees have the right to be accompanied by a trade union representative or workplace colleague at any disciplinary or grievance hearing. Whilst I fully support any member of staff receiving representation to ensure a fair and transparent process, any involvement from an external a legal professional would lead to additional considerations or complications. Legal professionals are used to representing their clients based on case law and points of legal dispute, the vast majority of disciplinary or grievance cases are more nuanced than a particular point of law.
Based on Nadhim Zahawi’s response it appears that this would only apply to teachers, although it is far more likely that this would have to be a general change to the Act to cover all employees across all sectors. It seems that the plan is intended to strengthen the rights of employees who are not in a union, which in principle is an idea I support. There is no indication that there is any imminent change to the legislation.
As a reminder I would like to take the opportunity to outline the current legalities on the right to be accompanied.
What is the right to be accompanied?
All workers have a statutory right to be accompanied by a work place colleague or a trade union representative where they are required to attend any formal HR related hearing. Please note that informal discussions and counselling sessions do not attract the right to be accompanied.
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 [2013] 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 workplace colleague, a trade union representative, or an official employed by a trade union.
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. 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. Please note that there may be mitigating circumstances where this is not possible. Most importantly, you must also consider the guidance highlighted in your disciplinary policy and liaise with your HR provider.
Do employees have the right to be accompanied by an external lawyer?
Whether an employee has a right to bring someone other that a workplace colleague or trade union representative will usually depend on the terms of their contract of employment. In Kulkarni v Milton Keynes Hospital Foundation NHS Trust [2009] IRLR 829, the Court of Appeal held that an NHS doctor was contractually entitled to be represented by a lawyer at a disciplinary.
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. 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. School are advised to consult with their HR provider.
There has been case law where the employee has sought to establish a right to legal representation at a 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.
In R (G) V Governors of X school [2011] 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, i.e. 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 (which is now part of the Disclosure and Barring Service) whether to put the employee of 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 request and the individual circumstances before deciding what approach to take.
By Tom Alexander,
Head of HR & Payroll
The Education Space
