Advice from the hotline...

The ASCL hotline is a completely confidential service available to answer members' questions on issues that arise in school/college. The questions and answers below are based on real calls to the hotline. To protect confidentiality, all scenarios have been anonymised. If you need advice on a personal or professional issue, call 0116 299 1122 and ask for the hotline officer.

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'Friendly' advice on hearing

Q I am likely to have to hold a disciplinary hearing in the near future and I am unclear about who is permitted to represent the member of staff. Our policy states that he may be represented by a union representative or a friend. I have found out that the 'friend' he plans to bring is his wife who is a qualified solicitor. He has told my informant that if I object, another solicitor in her firm will come as a 'friend'. Is he allowed to bring a solicitor to an internal disciplinary hearing? And am I protected if there is a later tribunal hearing for unfair dismissal because the member of staff had already been legally represented at the internal hearing and/or appeal?

A There is no statutory right to be represented at a disciplinary hearing although there is a right to be accompanied (see Employment Relations Act 1999 Section 10). However your disciplinary policy modifies this and at the very least it would be good practice to abide by it. If your policy does not define 'friend' you may be in some difficulty in preventing his wife from representing him even though she is a solicitor. You do not have to agree to his being represented by another solicitor in the firm if your disciplinary process does not allow for that.

However if the disciplinary action may result in criminal charges or possibly even dismissal and loss of livelihood there is fairly recent case law which suggests that a person's human rights may be infringed if an employee is not permitted to be represented before a panel where the right to practice one's occupation is at stake.

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Alleviating a stressful situation

Q I am an experienced head and have, until now, always felt that I have had a good relationship with colleagues and my employers. Recently two complaints about my management style have been lodged by a teacher and a member of the school support staff. Both have claimed that I have bullied them and the local authority is intending to investigate. I fear that such an investigation will make my situation untenable. Surely my employer has a duty of care to me and to protect my health and safety by ensuring that I do not suffer the stress that will inevitably accompany such an investigation?

A Such investigations are inevitably stressful for all concerned, even though your employment is not immediately at risk if you have a good answer to the allegations. Your employer does have a duty of care towards you and should ensure that someone is appointed from either the school or LA to maintain contact with you throughout the process.

In addition, if it becomes clear that the situation is making you unwell, your employer should arrange an appointment with an occupational health officer and follow any advice provided, such as postponing meetings or hearings if you are too unwell to attend, and/ or providing counselling. However this has to be balanced against the employer's duty to the complainants to investigate thoroughly and fairly what are very serious allegations.

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Clearing up consultancy

Q I frequently see articles advising that employers and their representatives should consult with employees before making any changes. What does 'consultation' entail? Is it enough to discuss matters informally at staff meetings?

A If an employer is contemplating changes to employees' terms and conditions, it is likely to be a breach of their contracts of employment and may give rise to claims for constructive dismissal. If it is simply a reorganisation of procedures it does not require formal consultation unless it involves redundancy. It is very important to consult properly and informal discussion at staff meetings is unlikely to meet the obligation to discuss the issue with the employees' representatives if employment rights are involved.

If an employer has agreements in place for trade union representation then generally such consultation should be done through the union. Otherwise the employer should arrange a mutually convenient meeting with all staff concerned, put proposals to them, confirm the proposals in writing and invite them to comment/respond. There should also be an open invitation to any member of staff to meet with the employer individually.

The consultation period does not have to be drawn out as long as there is reasonable time for staff to seek advice from union officers. The amount of time required will vary with the complexity of the issue.

Consultation is not the same as negotiation. If an employer has good, robust business reasons for making the changes (such as reducing a budget deficit) it does not have to change its plans in the light of employee objections.