Is there any right to legal representation at a disciplinary hearing?

There is no general right to legal representation at disciplinary hearings; under s.10 of the Employment Relations Act 1999 employees are entitled to be accompanied only by a workplace colleague or a trade union representative. An employee may have a contractual right to be legally represented at a disciplinary hearing, but this is likely to be rare.

Employees have argued that, where the outcome of the disciplinary hearing could result in the employee being excluded from working in his or her chosen profession, the right to a fair hearing under art.6 of the European Convention on Human Rights is engaged. Article 6 does not provide an automatic right to legal representation, but the procedural protection provided must be proportionate to what is at stake. However, in Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] IRLR 661 CA, the Court of Appeal stated that the question of the applicability of art.6 could not depend on whether or not in fact a doctor or other professional could obtain work in his or her field as a result of a dismissal. If that were the case, the application of art.6 would depend on the consequences of an individual dismissal, which would mean that it would be extremely difficult to know in advance whether it was engaged or not. The Court held that the internal disciplinary proceedings of the NHS Trust may give rise to a civil right, ie the right to claim unfair dismissal, but they did not determine any such right.

Similarly, in R (on the application of G) v Governors of X School and Y City Council [2011] IRLR 756 SC, in which a teacher was at risk of being placed on a list of those barred from working with children, held by what was then the Independent Safeguarding Authority (ISA), the Supreme Court held that the employer's refusal to allow the employee to be accompanied by a lawyer at the disciplinary hearing was not a breach of his human rights under art.6. The Supreme Court stated that the school's disciplinary proceedings themselves did not engage art.6 because they did not directly determine or exert a substantial influence over the ISA proceedings.

Therefore, current case law does not support employees' arguments that art.6 provides the right to legal representation at a disciplinary hearing.