I Have The Right To Legal Representation At Internal Workplace Disciplinary Hearing, Right

Workplace Human Resources department and employers are often charged with assessing the capability, conduct and grievances of their employees. Investigations can often be long, drawn-out, complex and tenseaffairs testing the employer/employee relationship. These investigations have been known to push relations to their very limit. One complication which can rear its head is the situation where witnesses may demand legal representation at an investigation hearing. The question is, can such people receive this legal assistance? Is the employer legally compelled to consent to this request?

Witnesses may believe they have the right to have a legal representative present and laudably want to help progress, clarity the facts and issues in the case and perceive a sense of fair play. Inexperienced employers and Human Resource departments with limited exposure of dealing with investigations may naively be caught out by such requests and decide to allow such legal representatives to attend these investigatory hearings. But how should such professionals respond when faced with such requests? Should they allow witnesses to attend investigatory hearing with a legal representative present with no questions asked? Alternatively, should the request be declined?

Witnesses in this situation are very much mistaken if they hold this point of view. The answer lies in section 10 of the Employment Relations Act 1999. Under this section, the legislature clearly did not intend for witnesses to attend investigatory hearings or meetings accompanied by a legal representative.

So, who is entitled to legal representation at such hearings? Under Section 10 Parliament elaborated that the legislation only applies to workers. This is only the first part of the test. If a person meets the definition of a worker, they may be eligible to be accompanied if they have been compelled or asked for their personal presence at a grievance or disciplinary hearing.

A qualifying person may need to negotiate another hurdle by physically communicating with the respective employer the request to be accompanied. If a person meets the criteria under the three tests set out above, employers will be obliged to allow the worker to be accompanied at the respective hearing or meeting.

How far can a person accompanying someone in a meeting or hearing go in fulfilling their obligations under section 10? The answer lies in section 10(2) of the same Act. Parliament attempts to lay down the scope, roles and responsibilities envisaged in the performance of this important role by interested parties. Employers are compelled to allow the worker’s companion to summarise and submit the worker’s case, respond on behalf of the worker to any view expressed at a hearing and communicate with the worker whilst the hearing is taking place.

The legislation simultaneously makes clear that the person tasked with accompanying the worker is not allowed to provide answers to questions on the worker’s behalf at the hearing, act beyond the instructions of the worker and must not act as a barrier to the worker explaining their version of events.

Matters now turn to who can accompany affected workers in this situation. Contrary to popular belief lawyers are not permitted to accompany clients at such hearings and meetings. By virtue of section 10 (3) of the Employment Relations Act 1999 many people will be surprised by the fact the law only permits a work colleague or Trade Union representative to accompany a worker at such a meeting or hearing. The law is very clear that lawyers are not allowed to attend the hearing.

We hope that this article has cleared up any misinformation and confusion surrounding the rights of witnesses to be legally represented and the general right to be accompanied at internal workplace hearings and meetings.

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This Article was Written Using the Following Sources

[1] Whincup, David – Looking into workplace investigations (Part 10) – sticking to the brief? (UK) – Squire Patton Boggs - 14 February 2022 - Looking into workplace investigations, Part 10 – sticking to the brief? (UK) | Employment Law Worldview

[2] Morris, Anne – Right to be Accompanied (Employer Guide) – David Morris – 25 October 2019 - Right to be Accompanied (Advice for Employees) | DavidsonMorris

[3] ACAS – Investigations for disciplinary and grievances step by step - Step 3: Carrying out an investigation: Investigations for discipline and grievance: step by step - Acas

[4] Section 10 Employment Relations Act 1999 - Employment Relations Act 1999 (legislation.gov.uk)

[5] Section 10(1) Employment Relations Act 1999 - Employment Relations Act 1999 (legislation.gov.uk)

[6] Section 10(2) Employment Relations Act 1999 - Employment Relations Act 1999 (legislation.gov.uk)

[7] Section 10(3) Employment Relations Act 1999 - Employment Relations Act 1999 (legislation.gov.uk)