Allowing representatives

What is the best policy about allowing someone to accompany or represent a student or member of staff in meetings?

Institutions frequently have rules restricting the choice of someone to accompany a person involved in a dispute at a meeting or hearing.  The usual reason for this is the anxiety to avoid the involvement of lawyers.

In the case of an employee,  ACAS recommends allowing a trade union representative or fellow-employee, and many institutions have adopted that as a rule.

Students too may be restricted by the institution in their choice of permitted representatives.  The Office of the Independent Adjudicator has expressed concerns about the effects when lawyers become involved in student complaints.

Rules excluding representatives should not be inflexible

It may not be fair to restrict a non-union member to fellow-employees. There may be no-one suitable, whom the employee trusts and who is competent to provide the right kind of support.

In the case of students, it may not be fair to restrict the student to a fellow-student or student union representative.

Cases should be considered on their merits. Sometimes a student may ask to bring a parent. Sometimes a student will not want a parent involved.

There may be good reasons to allow legal representation. It is unlikely to be fair for the institution to have lawyers present if the individual complainant is not allowed to bring legal representation.

What is the role of a representative, ‘friend’ or ‘companion’?

  • Roles played by advisers and representatives may range from simply providing moral support or taking notes to acting as spokesman.
  • It is usually a good idea to clarify the role of advisers and representatives at the beginning of the meeting.
  • A representative may provide moral support or advice, or may speak instead of the person under discipline as a representative.
  • The person who is a party to a dispute may change his or her adviser or representative at any time or choose to be unaccompanied or to ask the adviser of representative to leave the meeting.

Once a representative is agreed and accepted, consider:

What is the purpose of the meeting?

Institutions may be wise to consider the purpose of the meeting when making or enforcing rules which exclude certain categories of representative.

Is the meeting informal? Could it lead on to a formal process? In either case, it may be in everyone’s interests to makes sure that a student or employee has someone with him of her who can ensure that the meeting is conducted fairly and no procedural mistakes are made which could lead to an escalation of the dispute.

  Resources

 A very important issue concerns the right to be heard in an oral hearing and to use a representative. While the case-law … suggests that an oral hearing may not be required for the determination of a complaint of this kind, the denial of an oral hearing may affect students’ perception of the fairness of the procedure. In the surveyed HEIs, often the opportunity to be heard occurs only at a complaints panel stage (if there is one). Otherwise, it tends to be the case that an oral hearing will be at the discretion of the person adjudicating the complaint at the particular stage in question. So far as representation is concerned, only a minority of the procedures refer specifically to the student’s right to have a representative present during an oral hearing or a meeting with the investigator, but where they do they tend to discourage, or even attempt to bar, legal representation. 

Neville Harris, ‘Resolution of student complaints in higher education’,Legal Studies, 27, 4 (2007), pp 566-603.

There is a possibility that excluding legal representatives may now be unlawful, at least in the case of disciplinary hearings:

R (on the application of G) v. Governors of X School and Y City Council ( interested party) [2009] EWHC 504 (Admin) IRLR [2009] 434.

In this case it was held that legal representation should be allowed in internal disciplinary proceedings and that the fact that an Employment Tribunal was available did not provide an alternative remedy because:

 ‘the jurisdiction of the employment tribunal in such a case would not comprise a full review of the merits of the underlying facts’.

The principle relied on was that the seriousness of what is at stake for the person under discipline affects the right to representation.