July 2010: Employees have the statutory right to be accompanied at disciplinary and grievance hearings by a colleague or a trade union representative. The statutory right does not extend to legal representatives or family members. If the employee makes a request to be accompanied, s/he should do so reasonably. For example it may not be reasonable to choose a companion who is in geographically remote location when a suitable person is available at the place of work. It would also not be reasonable to choose a companion whose presence would prejudice a hearing or who has a conflict of interest. If the employee’s chosen companion cannot attend on the date proposed, the employee may offer an alternative time and date so long as it is reasonable and is no more than five working days later than the date proposed by the employer.
In October 2004 the Employment Relations Act 2004 extended the role of the companion so that the companion may now:
- put forward the employee’s case
- sum up the case
- respond on the employee’s behalf to any view expressed at the hearing; and
- confer with the employee during the hearing
However the companion still cannot answer questions on the employee’s behalf.
In G v X School the Court of Appeal in 2010 has held that Article 6 ECHR requires that a claimant should be afforded an opportunity to be legally represented at a disciplinary/appeal hearing where it was determinative of a right to practise a profession.
G was a teaching assistant at X school. An allegation was made that he had had sexual contact with a 15 year-old boy. The school governors conducted a disciplinary hearing and dismissed him, reporting his dismissal to the Independent Safeguarding Authority so that it could determine whether he should be placed on a ‘barred’ list of those unsuitable to work with children. G brought judicial review proceedings, challenging the governors’ decisions not to allow him legal representation at a disciplinary or appeal hearing.
The Court of Appeal found that:
(1) the right to practise a profession was a “civil right or obligation”,
(2) an ISA listing would fundamentally limit G’s ability to practise his profession and
(3) the school’s internal process would have a “substantial influence or effect” on the decision-making of the ISA.
G was therefore entitled to legal representation at the disciplinary and appeal hearings.