What is the role of the companion at a disciplinary hearing? Do we have to allow employees to bring a lawyer along?

The statutory right to be accompanied

The Employment Relations Act 1999 sets out, at Section 10, the right of employees to be accompanied at disciplinary and grievance hearings. The legislation states that the employer must permit the worker to be accompanied by a companion who is chosen by the worker and is either a colleague or a trade union official.

The legislation sets out that the role of the companion is:

• to address the hearing to put the worker’s case

• to sum up that case

• to respond on the worker’s behalf to any view expressed at the hearing

• to confer with the worker during the hearing.

A helpful clarification for institutions is that the employer is not required to allow the companion to answer questions on behalf of the worker; neither is the companion to be allowed to address the hearing if the worker indicates that he or she is unhappy for the companion to do so. Another limit placed on the companion is that he or she is not permitted to use his or her role in a way that prevents the employer from explaining his case or prevents any other person at the hearing from contributing to it.

A right to legal representation?

The legislation does not provide an express right for a worker to bring a lawyer along to internal hearings. The question of whether employees can insist on a lawyer as the companion was considered in a recent case against an NHS hospital trust. In that case, the procedures contained a right to be accompanied at a disciplinary hearing by “a representative of a trade union/professional organisation, by a work colleague, or friend, partner or spouse not acting in a legal capacity (companion)”.

The employee applied for an interim injunction asserting his right to bring a lawyer to his disciplinary hearing and tried to rely on an implied term of trust and confidence in the employment relationship, arguing that the employer had unreasonably refused to allow him legal representation given the grave nature of the allegations against him, the complexity of the legal argument and the serious consequences of the allegations being upheld. In addition, the employee tried to rely on the rules of natural justice and Article 6 of the European Convention on Human Rights, the right to a fair hearing.

The judge did not agree with the employee. The express term in the trust’s policy was clear and prohibited legal representation. It was held that having regard to all the circumstances, the decision to refuse legal representation was neither irrational nor unreasonable. Furthermore, the judge held that the decision was not in breach of natural justice nor Article 6.

The express term in the trust’s policy prohibiting legal representation clearly played an important part in this decision. It highlights the need for institutions to check their relevant policies in respect of the role of the companion at disciplinary/grievance hearings, and in particular to address the question of whether lawyers are permitted at internal hearings.

Diane Gilhooley is HR expert in the education team at Eversheds.