Disciplinary Proceedings - The Right to Be Accompanied

An employee has the right to be accompanied at a disciplinary hearing as long as the presence of the companion does not hinder the disciplinary hearing.

Where the choice of companion by the employee is reasonable, then the employer must allow the employee’s choice of companion. If the employer denies this right a tribunal is more likely to uphold an unfair dismissal claim.

This statutory right (derived from Section 10 of the Employment Tribunal Relations Act 1999) is restricted to the companion being either a trade union official or another employee at the company.

However in some contracts of employment there is the express right to legal representation in disciplinary proceedings. Furthermore in the case of Kulkami –v- Milton Keynes Hospital NHS Foundation Trust last year the Court of Appeal indicated the employee (who was in the public sector) could have been legally represented under Article 6(1) of the European Convention of Human Rights because the end result of the disciplinary proceedings could have meant Mr Kulkami would be unable subsequently to practise his profession.

Another case last year came to the same conclusion. This involved disciplinary proceedings against a teaching assistant for having an inappropriate relationship with a 15 year old pupil. The Court of Appeal confirmed the teaching assistant was entitled to legal representation at the disciplinary proceedings because of the potential effect on the assistant’s career.

While there may be circumstances justifying legal representation there is no automatic entitlement to legal representation in disciplinary proceedings. It is important to note also that these two cases only relate to public sector employees.