Section 10 of the Employment Relations Act 1999, Procedural Fairness and the Ethics of Workplace Discipline
By Shakil Dixon
Founder and Principal Representative, Zhan Associates
Introduction
Every disciplinary hearing tells two stories.
The first is the obvious one—the allegations, the evidence and the employer’s attempt to determine whether misconduct has occurred.
The second is often overlooked.
It is the story of how the decision is reached.
Was the process fair?
Did everyone understand their rights?
Was the employee genuinely able to present their case?
Did the decision-maker remain impartial?
These questions lie at the heart of procedural fairness. They are also the questions that most frequently determine whether an employer’s decision withstands scrutiny in an Employment Tribunal.
Recently, while representing a Unite member at a disciplinary hearing, I encountered a situation that raises broader concerns about how some organisations interpret the statutory right to accompaniment.
Before any evidence had been heard, the Chair opened the hearing by reading an HR-prepared script. Included within it was the following statement:
“The union representative is not allowed to speak during the course of the hearing. They may confer in private with the employee but are not allowed to speak or answer questions on the employee’s behalf.”
I challenged the statement immediately.
Not because I wished to dominate the proceedings, but because it fundamentally misrepresented the statutory purpose of workplace representation.
The hearing continued, but the incident left me asking a more important question.
How many disciplinary hearings begin with employees being told—incorrectly—that their representative cannot speak?
If that wording has been repeated over months or years, how many workers have unknowingly received diminished representation before their hearing even began?
More importantly, what does this say about our understanding of fairness, ethics and justice within modern workplace discipline?
This article explores those questions through the lens of law, ethics and professional practice.
Representation Is Not a Courtesy
There remains a persistent misconception that the presence of a trade union representative or workplace companion is little more than an administrative safeguard.
It is not.
Section 10 of the Employment Relations Act 1999 introduced a statutory right for workers to be accompanied at disciplinary and grievance hearings by either:
- a certified trade union official;
- an accredited trade union representative; or
- a fellow worker.
This was not a symbolic gesture.
Parliament recognised that disciplinary hearings are inherently unequal.
Employers arrive supported by management, HR professionals, organisational knowledge and procedural experience.
Employees frequently arrive under intense emotional pressure, unfamiliar with disciplinary procedures and uncertain about the consequences they may face.
Dismissal.
Loss of income.
Damage to reputation.
Professional embarrassment.
The legislation seeks to rebalance that inequality—not by transferring control of proceedings to representatives, but by ensuring employees can participate effectively.
Section 10 therefore permits a companion to:
- address the hearing;
- present the employee’s case;
- respond to views expressed during the meeting; and
- confer privately with the employee.
The companion may not answer questions that are directed to the employee, nor prevent the employer from explaining its case.
That distinction is crucial.
It does not follow that representatives must remain silent.
The difference between “may not answer questions on the employee’s behalf” and “may not speak” is not semantic.
It is fundamental.
Why Language Matters
Opening scripts establish expectations.
Employees naturally assume the Chair understands the procedure.
Representatives—particularly inexperienced workplace companions—may equally assume that the employer’s explanation accurately reflects the law.
When inaccurate information is presented at the outset, it shapes behaviour throughout the hearing.
Representatives become hesitant.
Employees lose confidence.
Managers assume restrictions exist where none do.
The imbalance Parliament sought to address quietly reappears.
Perhaps unintentionally.
Perhaps through misunderstanding.
Or perhaps because no one has challenged the wording before.
That possibility should concern every HR professional.
HR: Adviser or Guardian of Procedural Integrity?
Human Resources occupies a uniquely influential position within workplace investigations and disciplinary processes.
Its advice shapes policies.
Its guidance informs managers.
Its documents frame hearings.
Its procedures influence outcomes.
With that influence comes responsibility.
HR professionals understandably owe duties to their employer.
They must ensure consistency.
Protect organisational interests.
Support operational managers.
Reduce legal exposure.
Yet these responsibilities cannot exist independently of fairness.
Indeed, the greatest protection HR can offer any organisation is confidence that its disciplinary processes are lawful, transparent and procedurally sound.
An inaccurate hearing script undermines that confidence.
Ethical HR should never seek to minimise statutory rights.
Its role is to ensure those rights are properly understood and respected.
The distinction is important.
An organisation may succeed in defending a particular dismissal while simultaneously damaging trust in its disciplinary procedures.
The immediate case may be won.
Confidence in organisational justice may be lost.
Ethics Beyond Compliance
Employment law establishes minimum standards.
Ethics asks whether those standards are enough.
A legally compliant process may still feel fundamentally unfair.
Employees judge disciplinary procedures not solely by outcome but by experience.
Were they listened to?
Were they treated with dignity?
Were they allowed to explain?
Was the Chair genuinely impartial?
Behavioural researchers have long described this as procedural justice.
People are significantly more likely to accept an adverse outcome when they believe the process itself was fair.
Conversely, employees who feel excluded or silenced frequently challenge decisions, even where evidence against them is compelling.
Ethical organisations understand this.
Their objective is not merely to reach the correct decision.
It is to reach that decision through a process worthy of confidence.
Can the Chair Also Present the Case?
The same hearing raised another issue deserving examination.
The Chair also presented the management case.
This practice is not uncommon, particularly within smaller organisations.
Whether it is always unlawful is one question.
Whether it inspires confidence is another.
Natural justice rests upon two enduring principles:
- every individual should have a fair opportunity to present their case; and
- decisions should be made by an impartial decision-maker.
When one individual gathers the evidence, presents the allegations, questions witnesses and ultimately determines whether misconduct is proven, maintaining both actual and perceived impartiality becomes more challenging.
This does not imply dishonesty.
Rather, it reflects well-documented principles of human decision-making.
Confirmation bias encourages us to favour evidence supporting our existing beliefs.
Commitment bias makes it psychologically difficult to depart from conclusions we have already begun to defend.
Anchoring influences our assessment of subsequent evidence once an initial position has formed.
These biases affect everyone.
Managers.
Investigators.
Representatives.
Even judges.
That is precisely why robust procedures matter.
Wherever practicable, organisations should separate investigative, presenting and decision-making functions.
If separation is impossible, the Chair must work even harder to demonstrate objectivity throughout the process.
Justice Must Be Seen to Be Done
A principle deeply embedded within British justice is that fairness must not only exist but be visible.
Employees begin assessing fairness long before the outcome is announced.
They observe:
- who speaks;
- who asks questions;
- who interrupts;
- who controls the discussion;
- whether objections are acknowledged;
- whether representatives participate meaningfully.
If the first statement they hear incorrectly limits representation, confidence begins to erode before evidence has even been presented.
That is an avoidable problem.
The Role of Representatives
Good workplace representatives are not there to obstruct proceedings.
Nor are they present simply to take notes.
Their role is to ensure the employee’s voice is heard clearly and accurately.
Effective representation often assists employers.
Representatives help clarify misunderstandings.
Identify relevant evidence.
Focus discussions.
Reduce emotional confrontation.
Encourage constructive dialogue.
Challenge procedural irregularities before they become appeal grounds.
Far from disrupting hearings, competent representatives frequently improve them.
The objective should never be confrontation.
The objective should always be fairness.
Practical Recommendations for Employers
Organisations seeking to strengthen procedural integrity should consider:
- Reviewing all disciplinary scripts for legal accuracy.
- Training Chairs on the statutory right to accompaniment.
- Avoiding blanket restrictions on representatives.
- Separating presenting and decision-making roles wherever practicable.
- Recording procedural objections openly and fairly.
- Reviewing hearings periodically to identify recurring procedural concerns.
These measures reduce legal risk while strengthening confidence among employees and managers alike.
Practical Guidance for Representatives
Representatives should:
- Familiarise themselves with Section 10 and organisational procedures.
- Read all hearing documentation in advance.
- Raise procedural concerns respectfully but firmly.
- Ask for objections to be recorded.
- Focus on improving fairness rather than escalating conflict.
Professional advocacy is measured not by volume but by credibility.
A Question Every HR Director Should Ask
Before the next disciplinary hearing begins, consider one simple question.
If an independent observer walked into the room, would they conclude that every participant understood their rights and that the process was genuinely balanced?
If the answer is uncertain, there is work to do.
Conclusion: Beyond Compliance
This article is not an attack on HR.
Nor is it an argument that every disciplinary hearing is flawed.
Many HR professionals work tirelessly to ensure investigations are fair, balanced and legally compliant.
However, isolated practices have a habit of becoming embedded over time.
A sentence inserted into a script years ago may continue unchallenged long after its implications have been forgotten.
That is why periodic reflection matters.
Employment law provides the framework.
The Acas Code reinforces good practice.
Professional ethics demand something more: a commitment to ensuring that every employee enters a disciplinary hearing with the full benefit of the rights Parliament intended them to have.
The statutory right to accompaniment exists because fairness requires more than the opportunity to sit quietly beside an employee.
It exists because meaningful representation is an essential safeguard against procedural imbalance.
The real question, therefore, is not whether representatives should be permitted to speak.
The law has already answered that.
The more important question is this:
What kind of organisational culture seeks to narrow statutory rights before the hearing has even begun?
For employers genuinely committed to fairness, the answer should be simple.
It doesn’t.
Look out for the follow-up post on Section 10 and Representation.
UPDATE:
Having decided to sanction the member with a final written warning the company in question have reconsidered their position and have informed him that no further action is being taken. Thankfully common sense has prevailed.
About the Author
Shakil Dixon is the Founder and Principal Representative at Zhan Associates, specialising in workplace advocacy, disciplinary representation, appeals and strategic defence for employees facing significant employment disputes. With more than three decades of experience in workplace representation, public service and organisational governance, he advises clients on achieving procedurally fair outcomes while ensuring employers remain accountable to both the law and the principles of natural justice.