“We have invited an employee to attend a disciplinary hearing and they have asked to have a lawyer present. Can we refuse?”
Workers and employees have the legal right to be accompanied by either a colleague or a trade union representative at a disciplinary or grievance hearing. The workplace does not need to officially recognise a trade union for the worker to be entitled to be accompanied by a trade union representative. Further, the worker does not need to be a member of that union; however, most unions require the worker to be a member before they are entitled to representation. The right to representation is absolute provided that the worker has asked to be accompanied at the meeting by a trade union representative or colleague. This right applies even where you think that their choice of companion is unreasonable and it is not acceptable to impose restrictions on which colleague they can choose.
One thing to be mindful of is the obligation to make reasonable adjustments in respect of disabled employees where it might be appropriate to allow a friend or family member to attend with them if it would remove a substantial disadvantage. Similarly, if English is not the first language of individual it may be appropriate to consider allowing an alternative companion.
In terms of legal representation, there is no general right for the worker to bring a lawyer to a disciplinary hearing. That said, you should always check the contract of employment and staff handbook as it is possible that there may be rights over and above the legal minimum. In limited circumstances, the worker may be able to establish a right to legal representation under human rights legislation on the basis that a failure to allow it would breach the right to a fair trial. However, this will rarely apply to disciplinary hearings as it is only applicable where the outcome of proceedings would have a “substantial influence” on the decision of a regulatory body (or similar), i.e. an organisation with the power to prevent someone from practising their profession.
Where a worker is invited to a disciplinary or grievance hearing and their chosen representative cannot attend they can ask for the hearing to be postponed for up to five working days.
Please note this article should only be considered as guidance and should not be taken as specific legal advice. For further advice on this topic contact Kelly Gibson at Taylor&Emmet LLP at Kelly.Gibson@tayloremmet.co.uk and 0114 218 4307