Legal representation and human rights - the impact on disciplinary procedures

There is perhaps one thing worse than a barrack-room lawyer - a real lawyer. Up to now, employers have only had to deal with the former, at least in internal disciplinary hearings where in the absence of any contractual rights to do so, employees could only be accompanied by a colleague or trade union rep. But that's changed thanks to a recent High Court decision. Now, in some cases, employees will have the right to have a lawyer represent them. Welcome to the courtroom in your office.

The High Court has held that an employee should be allowed to be accompanied by a lawyer at a disciplinary hearing in circumstances where a consequence of the hearing could be the addition of his name to the register of individuals deemed unsuitable to work with children. The gravity of the allegations (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact on the employee's future working life of potentially being added to the sex-offenders register mean that the employee was entitled to legal representation before the Disciplinary Committee and Appeal Committee at the school at which he worked. The Court therefore quashed the Disciplinary Committee's decision to dismiss him.

Clearly, not every case will involve allegations this serious or consequences so grave. However, it is now arguable that in any employment governed by a regulator, where conduct is alleged which would result in sanction by the regulator, an employee will have the right to legal representation. The implications are strongest for the public sector and financial services, where certain kinds of misconduct can lead to individuals losing not only the job they hold but the right to do that job for anyone.

Wragge & Co's employment experts investigate the case and provide action points to consider.