Academic Research

CLS Staff Forum: Clowning Around? Expanding the Right to Accompaniment in Workplace Disciplinary Proceedings in English Law

I recently gave a presentation at the Coventry Law School Staff Forum on the potential changes to the ‘Right to be Accompanied’ at workplace disciplinary hearings. My PhD studies focus on the role of Natural Justice Principles at disciplinary proceedings, so this was related to my thesis. For those unfamiliar with this area of law I have made a short YouTube video on this area.

The possible changes were that the present right to be accompanied should be expanded. Under section 10(3) Employment Rights Act 1999, an employee can be accompanied at a disciplinary hearing by a trade union representative, an official employed by a trade union or one of the worker’s colleagues. The mooted changes would allow third parties from outside the employers’ organisation or the Union, to represent employees at such hearings.  This reform, it was reported, would bring domestic law in line with the practice of most other countries in the world.

Starting with the domestic position, there is a limited right to accompaniment as previously addressed and under section 2B Employment Relations Act 1999, any such companion can address the hearing, put the employee’s case, sum up the case and respond on the workers’ behalf. There is a very limited right to legal representation in line with Article 6(1) of the ECHR and the cases of Kulkarni [2009] EWCA Civ 789 and Mattu v University Hospitals of Coventry & Warwickshire NHS Trust [2012] EWCA Civ 641, along with case law from the European Court of Human Rights: Le Compte, Van Leuven & de Meyere v Belgium (1982) 4 EHRR 1.  

Other Common Law jurisdictions, namely the Republic of Ireland, the United States, Canada, Australia and New Zealand were considered. The rules within the first three jurisdictions were broadly similar to domestic one, but the position in Australia is confusing. An employee is allowed to be accompanied by a ‘support person’ under s387(d) of the Fair Work Act of 2009 who could include a lawyer but who must state at the beginning of the hearing whether they are an ‘advocate’ or an ‘assistant’ and their contributions are seemingly tolerated at the employer’s whim.  The rules from New Zealand were the most flexible as under section 236 Employment Relations Act 2000 an employee ‘may choose any other person’ to represent them. The implications of this practice are most starkly illustrated by an incident reported in the New Zealand Herald from 2019, whereby an employee was represented by a professional clown at a redundancy hearing (Damien Venuto, ‘Auckland adman hires professional clown for redundancy meeting’, New Zealand Herald, 13/09/2019).

The civil law jurisdictions examined were generally much more restrictive. Out of 7 former Eastern Bloc countries examined, only Art 267 of the Romanian Labour Code expressed a right to accompaniment. Germany, likewise, seemed to allow only representation by a member of the Works Council. However France seemed much more permissive allowing ‘employment advisors’ as representatives under the Code du Travail Article L1232-7.  

Ultimately, the practice of allowing third parties outside of trade union officials and work colleagues to represent people at disciplinary hearings, was found to be far from pervasive on the world stage.

Indeed, a more pressing domestic concern as regards the right to accompaniment, is the limited right to legal representation at dismissal hearings as mentioned. This is presently only allowed when the employee is in danger of losing his/her right to practice their chosen profession, under Human Rights Law this is the deprivation of a civil right. A “non-professional”, whatever that may be, does not presently have this luxury.  

You can find out more about Alex’s research through his Pure profile, where you can find more on his research interests, publications, and contact details. You can also find out more about Coventry University’s research through our dedicated research pages.

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