The right of an employee to be accompanied at a disciplinary or grievance hearing is enshrined in the Employment Relations Act 1999 (section 10), and it is also identified as one of the “core principles of reasonable behaviour” in ACAS’ Code of Practice, which employment tribunals are obliged to take into account when determining whether a fair procedure has been followed in grievance and disciplinary hearings.
An employee’s companion may be (a) another of the employer’s workers, (b) employed by a trade union of which they are an official, or (c) an official of a trade union (not employed by that union) whom the union has certified as having appropriate experience of, or having received training in, acting as a worker’s companion. In theory, the employee need not be a member of the trade union in order to be accompanied by an official of that union, nor is there any requirement that the representative’s trade union be recognised by the employer.
However, in practice, the right to be accompanied can be of limited value to employees, as trade unions will usually only provide members with a representative at a disciplinary hearing, and work colleagues are often reluctant to participate in a co-worker’s disciplinary and/or grievance process for fear of reprisals by the employer (even though these are prohibited by law). As a result, it is not unusual for employees to request that they be accompanied by an “external” third party, who will often be a legal representative. To date, it has been generally accepted that an employer is under no obligation to allow an external lawyer to participate in an internal dispute resolution process, but the recent case of Kulkarni v Milton Keynes Hospital NHS Trust has produced a rare judicial ruling on whether an employee has the right to be accompanied at a disciplinary hearing by a lawyer.
Mr Kulkarni (“K”), a doctor, was accused by a patient of inappropriately examining her. His employer, Milton Keynes Hospital NHS Trust (“the Trust”) suspended K and, following an investigation, commenced disciplinary proceedings against him.
K was employed under terms and conditions that stated that conduct issues would be resolved through the Trust’s disciplinary procedures, which were said to be consistent with the “Maintaining High Professional Standards in the Modern NHS” framework. That framework expressly provided for an employee to be accompanied at any disciplinary hearings by a companion who was not acting in a legal capacity. The Trust’s own disciplinary procedure also stated likewise. Consequently, the Trust rejected a request from K that he be allowed to be legally represented at the disciplinary hearing.
K challenged the Trust’s decision arguing, amongst other things, that an implied term of trust and confidence required the Trust to exercise its discretion to permit him to have legal representation since (a) the allegations against him were serious, (b) he could not be expected to present his own defence because it would involve complex cross-examination and legal argument, and (c) the potential consequences for him were severe in that he could lose his job and any prospect of future employment in the medical profession.
A High Court judge ultimately ruled against K, holding that the terms of the Trust’s disciplinary procedure excluding the right to legal representation left no scope to imply a contractual term that he should be allowed such representation. Alternatively, if such a term could be implied, K had not demonstrated that it was unreasonable and unfair not to allow legal representation on the basis of exceptional reasons. Finally, the judge held that the Trust’s procedure did not breach the principles of natural justice or the European Convention on Human Rights, as had been asserted by K.
The decision in Kulkarni lends support to the practice that has typically been adopted by employers when faced with a request that an employee be accompanied by a legal representative at a disciplinary or grievance hearing.
Moreover, it is rare that an employee will be so aggrieved at an employer’s refusal to allow legal representation in such circumstances that he or she will challenge the decision in court; indeed, the few reported cases on this point involve situations where professionals – typically doctors or lawyers – face the prospect of being struck off their professional registers as a consequence of disciplinary action that may be taken against them. In such circumstances, it is easy to understand why the employee might be so anxious to be accompanied by a lawyer at the disciplinary hearing.
However, it is clear that the judge that considered Kulkarni placed considerable stock on the existence of wording in the Trust’s procedures (and the NHS framework) expressly precluding the participation in the disciplinary process of external legal representatives. As a result, employers who wish to restrict the extent to which employees can be accompanied by legal representatives (or indeed by any other person not authorised by statute, such as a friend or relative) at internal disciplinary or grievance hearings are best advised to include clear wording to this effect in their disciplinary or grievance procedures.