Disciplinary Hearings – The Right to Legal Representation

The issue of accompaniment or representation often arises during grievance, disciplinary and other employer processes.

Parents, spouses, family friends and often lawyers are often sought as companions or representatives.

Employer clients have frequently asked: is a companion permitted?

What about a representative?

A lawyer?

And do we have to offer, or do we wait until they ask?

These are all fair and understandable questions from employers, but the answers are not straightforward.

Many employers are instinctively nervous of allowing external lawyers or even union representatives into internal employee processes, but they do not always need to be so.

Ordinarily, and wisely, employers advise employees that they are entitled to bring a work colleague or a Union Representative to a grievance or Disciplinary Hearing (Note: Not just anybody e.g. a friend or someone unconnected with the employer and most definitely not a Lawyer).

The WRC Code of Practice on grievance and disciplinary procedures recommends this as a good practice.

You can check out the Code here

As provided for under Code of Practice, in accordance with the right to representation during disciplinary procedures, a representative is defined as ‘a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise’.

The Code of Practice is therefore unclear as to whether:

• an employee has the right to elect between a trade union official or a work colleague as their representative; or
• an employer can comply with the Code of Practice by specifying that an employee may only have a work colleague attend, given that a work colleague falls within the definition of an employee representative.

In our experience, a significant number of employers have adopted the latter interpretation, meaning that many employers’ disciplinary procedures provide that an employee’s only option, if they wish to be accompanied or represented, is to be accompanied or represented by a work colleague.

However, recent WRC decisions suggest that an employer who refuses an employee representation by a trade union official, where one is available, may fail to defend any unfair dismissal claim on procedural grounds.

It does not appear as if any legislation is planned, to resolve the ambiguity in the Code.

That being said it’s only a code and is not legally binding, but it would be unwise for an employer to ignore it.

What about legal representation?

The Supreme Court has clearly stated that it is only in “exceptional cases” in order to ensure a fair Hearing that an employee might be entitled to have a lawyer present at the Hearing.

In deciding whether to allow an employee bring a lawyer the employer should have regard to the seriousness of the allegation, the potential sanction (e.g. dismissal), whether there were complex legal points or procedural difficulties needing consideration, the capacity of the employee to present their own defence (e.g. illiterate or non-national, dyslexia) and the need for reasonable speed in finalising the process.

Employers need to be careful and not automatically dismiss employee’s rights to legal representation.

It should be carefully considered, and reasons given if necessary for a refusal.

A blanket refusal may not always be a good idea and strictly adhering to internal guidelines on entitlement to representation without due regard to the employee’s limited right to legal representation “in exceptional circumstances” may be counterproductive.

Sometimes it may make more sense to allow an employee to have a lawyer present for the Hearing and it may make any subsequent dismissal or sanction easier to defend in the event of an Appeal.

In most workplace investigations/Disciplinary Hearings it is not necessary or desirable for Lawyers to be involved because of the consequential delay and increased costs that arise.

Just because a case can be “better presented” by a lawyer “falls a long way short of saying that the presence of a Lawyer is necessitated in order for the process to be fair”.

Such a right should be the exception and not the rule.

What about cross examination?

Unfortunately, the issue of cross examination during a disciplinary hearing/investigation still remains unclear, though the WRC Code of Practice does state that the employee should be afforded the opportunity to question witnesses.

Therefore, employers should still proceed with caution as regards receiving any requests for rights to cross-examination during such a process.

The Key Principles

To avoid the risk of an unfair hearing or procedure, employers should always employ the following basic principles:

• An employee should be informed of the allegations against them, furnished with all evidence being relied upon at the hearing, be notified of the severity of the situation, particularly in instances of gross misconduct and that the allegations could lead to their dismissal if upheld;
• In addition, the employee will need to be informed of their right to representation, either a work colleague or Trade Union Official. If the allegations are serious and may result in dismissal does not in itself justify the presence of a legal practitioner; only instances where complex legal issues arise and requires a lawyer to manage it;
• During the investigation, the employee should be afforded a reasonable opportunity to address the allegations and evidence, particularly any witness statements;
• The employer should invite any representations on the employee’s behalf;
• The investigator issues a detailed report, merely stating the facts gathered throughout the process, refraining from making a determination and/or recommendation;
• Another member of management (distinct to those involved in the investigation), on foot of the investigation report, takes a decision of whether or not to proceed to disciplinary action;
• The first two steps should be repeated in their entirety. After which a full decision should be issued within a reasonable time period, setting out the basis of their decision, and the sections of the Contract of Employment and/or Employee Handbook being relied upon. In conjunction with the action taken, an employee should be offered the right to appeal any decision within a specified period.

Where a colleague attends they should be allowed to ask questions and should be able to confer with the employee.

It may also be agreed that the colleague represents the employee at the Hearing, where the employee may be unable or unwilling to do so.

However, the employee should answer questions directed to them.

For guidance on how to manage disciplinary issues check out our step-by-step guide