Everyone knows that employees have the right to be accompanied by a colleague or trade union representative at disciplinary hearings.

This has been law since the introduction of the Employment Relations Act 1999 and, long before that, it was generally considered to be good employment practice.

The purpose is to address the imbalance of power, which is in the employer's favor in these situations. Being disciplined is a serious business. Being accompanied gives the employee the best possible chance of putting forward his best possible defence.

On the other hand, no right to be accompanied exists in relation to investigatory hearings, which are often described as "informal", or "not forming part of the disciplinary procedure". It is a recognized tactic to wheel employees into investigatory hearings, deny them representation on that basis and then ask them the types of questions one might expect to be reserved for the disciplinary hearing.

Employers can justify this, perfectly legitimately, by arguing that they do not intend imposing any sanction as a result of what the employee says during the investigation - it is simply a matter of establishing facts in order to decide whether formal disciplinary proceedings are necessary.

The practice was recently challenged by a South Coast train guard who was required to attend an "investigatory meeting" into a grievance raised against him by a colleague. He took the view that this was just a back-door attempt to "interrogate" him, and therefore refused to attend without his trade union representative. His employer refused to allow that.

The Employment Appeal Tribunal sided with the employer. It said that a distinction could be made between meetings designed purely to establish facts and meetings that were disciplinary in nature. It emphasised that if at any point during an investigatory meeting it became clear that disciplinary proceedings were necessary, then the process should be stopped and the employee offered representation.

"Investigatory" meetings remain a useful weapon in the employer's armory. As always, it is a matter of acting reasonably - of explaining properly the extent of their remit and of not straying beyond that remit without stopping to offer representation.

Published: 05/07/2005