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Disciplinary hearings – a problem shared

I am regularly asked by employees “who can come with me to my disciplinary hearing”. My answer to this question has been fairly well rehearsed over the years along the lines of “your legal right is to be accompanied by a work colleague or trade union representative”. I then pause and wait for the next question which is often “can you not come with me?” My response is a predictable “sadly not, employers don’t like having lawyers anywhere near a disciplinary hearing”.

A recent employment law case though has given me pause for thought. In that case, a university was found to have breached the duty of trust and confidence implied into every employment relationship by refusing to allow a professor and clinical academic to be accompanied by a representative from his medical defence organisation to a disciplinary hearing.

The university’s concern that permitting this choice of representative might open the floodgates fell on deaf ears. The allegations against the professor were serious and could potentially have jeopardised his career. The university had enjoyed the benefit of having access to technical assistance on complex issues as part of the disciplinary process and so should the professor decided the Employment Appeal Tribunal. The inequality of the relative positions of employer and employee was considered to be relevant in this case.

There was no work colleague or trade union representative who could have accompanied the professor to the disciplinary hearing.

My advice to employees is not going to change so far as to suggest that the legal right to a companion has been extended generally. However, I am going to suggest to employees that they may want to push the boundaries a little more and request their companion of choice. There is no harm in asking.

Some employers are prepared to be flexible and go beyond the legal minimum requirement anyway.

Where an employee has a disability and needs extra support at a disciplinary hearing, from a family member or carer for example, employers should widen the right to be accompanied at a disciplinary hearing as this could be a reasonable adjustment required under disability discrimination legislation.