Employee Legal Representation/disciplinary

25th October 2011
Employee Legal Representation/disciplinary image

Should an Employee be allowed Legal Representation

One issue that frequently arises in Disciplinary Procedures is whether or not an Employee subject to those proceedings has a right to legal representation at the Disciplinary Meetings.  The ACAS Code of Practice, although not binding, provides guidance that a Tribunal will usually expect an Employer to follow; namely that the Employee should be allowed a Trade Union Representative or work colleague to be present.

However in certain cases Employees have tried to argue, under the European Convention on Human Rights (Article 6) that they should be entitled to have legal representation.  Most of these cases have related to Disciplinary Meetings involving teachers or doctors, who as well as facing the risk of dismissal could also latterly be barred from their profession as a result of the alleged misconduct.

A recent example of this is the case of R –v- The Governors of X School.  Here a Teaching Assistant was accused of forming an inappropriate relationship with a 15 year old boy.  Initially the Disciplinary Panel found the Teaching Assistant guilty of gross misconduct and there was an immediate dismissal.  At the same time, the dismissal was notified to the Independent Safeguarding Authority (ISA) so it could determine whether to place the Teaching Assistant on the “barred list” preventing him from working with school children.

The Teaching Assistant appealed against the dismissal using the internal Disciplinary Procedure, and requested legal representation which was refused.  The Teaching Assistant then sought a judicial review.  The Supreme Court rejected his application, since it felt that the ISA would carry out its own full investigation and make its own judgement upon the conduct of the Teaching Assistant.  Hence the Supreme Court felt that the ISA would not necessarily just follow the school’s decision.  As a result the Supreme Court felt that in the particular circumstances that there was no breach of the European Convention on Human Rights by failing to allow the Teaching Assistant any legal representation at the school’s internal Disciplinary Meetings.  However one of the Judges did disagree and felt that legal representation should be available at the disciplinary stage in such circumstances.

Daven Naghen, head of the Employment Team at Maples Solicitors LLP commented as follows:-

“In most Disciplinary Processes, there would ordinarily be no right for an Employee to require legal representation.  However, particularly with professions like teachers and doctors, the answer may not be quite so straight forward since the disciplinary outcome may lead to that Employee being barred from his or her profession.  In such circumstances the Courts have held that the refusal to allow legal representation may not amount to a breach of the Employee’s human rights but I do not think that an Employer can necessarily be sure of this finding in every case.  In cases of this nature, the Employer should seek independent legal advice before accepting or declining an Employee’s request for legal representation at a Disciplinary Meeting.”

For advice on this subject please contact either Daven Naghen on 01775 722261, daven.naghen@maplessolicitors.com or at 23 New Road, Spalding, Lincolnshire PE11 1DH or Gemma Mayer on 01775 722261, gemma.mayer@maplessolicitors.com or at 23 New Road, Spalding, Lincolnshire PE11 1DH.


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Free Wills Month in October

Maples are pleased to announce that they are taking part in Free Wills Month throughout October. If you are aged 55 or over you can make your Will for free and have the opportunity to help one or more of the sponsoring charities in the process. Appointments are limited in number and are allocated on a first come first served basis.

For further details please contact a member of our Wills and Probate Department:-

Jane Mawer- jane.mawer@maplessolicitors.com
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office 01775 722261 and ask to speak with one of the team.

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Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

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