Tackling employee misconduct can be challenging for employers, particularly when the employee is represented during the disciplinary process. However, with greater understanding and advance planning, employee representatives can be beneficial to both the employer and the employee in progressing and concluding the disciplinary process, writes Victoria Clark, an associate in the employment law team at Clarion.
Employees have a statutory right to representation at disciplinary hearings. The right applies where there could be a penalty imposed, such as a formal warning or dismissal. It also applies to an appeal hearing where the penalty is reviewed.
The right does not extend to informal discussions or fact-finding meetings where the employer is investigating a potential conduct issue, rather than considering a disciplinary penalty.
Who to pick?
The employee’s right is to be accompanied by a colleague or trade union representative. Provided these categories apply the employer cannot refuse or limit an employee’s choice of companion. It is entirely the employee’s choice.
Employers can generally refuse representation by friends and family. However, in some circumstances, it may be reasonable for the employer to accommodate them. For example, where the employee is particularly young or vulnerable.
Also, disciplinary proceedings can become protracted where employee representatives have limited availability and repeatedly seek rearrangement of hearings. It can be difficult to balance the employer’s desire to progress matters without delay against the employee’s right to representation.
In cases where the disciplinary proceedings are at risk of becoming unduly protracted, offering to extend representation rights to friends and family may help to progress the proceedings in a timelier way. Another option might be to propose an alternative hearing venue to the employer’s premises – for example, a neutral venue which is closer to the representative’s location.
The employer is not obliged to accommodate alternative representatives or to propose alternative disciplinary hearing venues, but in some cases this can prove beneficial in the interests of taking control and bringing matters to a conclusion.
In any case where the employee is disabled for employment law purposes, the employer may in fact have a legal duty to widen representation rights as a reasonable adjustment. Allowing a friend or family member to attend the disciplinary hearing might help the employee to overcome any disadvantage faced as a result of any disability with regard to the disciplinary proceedings. The same principle applies to the hearing venue.
It will rarely be appropriate in any case for employers to accept lawyers as employee representatives. Where an employee insists on having legal support during disciplinary proceedings, employers should make clear that there is no right for a lawyer to attend the disciplinary hearing.
In the interests of concluding the disciplinary process without undue delay, the employer should consider agreeing to a short adjournment of the hearing where necessary for the employee to take telephone advice from their lawyer, or perhaps to consult their lawyer in a separate room outside the disciplinary hearing.
Explain the limits
To avoid any surprises and difficulties such as those outlined above, employers should always explain to the employee the limitations on their right to representation and request confirmation of any representative’s identity in good time before the disciplinary hearing.
At the disciplinary hearing, it is good practice to allow the employee’s representative to participate fully. However, employers should be careful not to give representatives a free reign since it can then become difficult to manage the hearing.
Employee representatives are only entitled to:
Address the disciplinary hearing. This might include including submitting the employee’s case, summing up and responding to any view expressed at the hearing.
Confer with the employee. This may be done openly or privately during an adjournment of the hearing.
Employee representatives are specifically prohibited from:
Answering questions put to the employee during the disciplinary hearing. The employee must speak for themselves.
Addressing the hearing contrary to the employee’s express wishes. The representative can only say what the employee has permitted them to say.
Acting in a way that prevents the employer explaining its case or prevents any other person making a contribution to the hearing.
In other words, the representative cannot be deliberately obstructive or act of their own accord during the hearing.
Often this is a fine line to determine. Therefore, to avoid representatives overstepping the boundaries, it is prudent at the outset of any disciplinary hearing for the employer to outline the scope and limitations of the representative’s role. Pause the hearing if necessary to reiterate this.
It is becoming increasingly common for employees and their representatives to record disciplinary hearings. Whilst covert audio recordings are frowned up by the employment tribunal, employers should bear in mind that transcripts of any such recordings will generally be accepted and considered by the tribunal as evidence.
Employers should therefore exercise caution and proceed as if every disciplinary hearing could be recorded, and employers who wish to produce audio recordings should only do so with the employee’s consent.
Finally, employers may be liable for claims of unfair dismissal if disciplinary procedures are not followed correctly, including with regard to employee representation. Therefore, employer should always consider taking specialist employment law advice when dealing with any disciplinary case.