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This article was included in the spring/summer 2011 issue of People - the employment and pensions newsletter.
All employees have a statutory right to be accompanied at an internal disciplinary hearing by a trade union representative or a colleague. However, how should an employer respond if an employee asks to be accompanied by his or her solicitor? In times gone by, employers were in a stronger position to refuse such a request but, following recent case law, employers may need to think carefully before they respond.
The basics
Whilst some employees, such as NHS doctors, may have a right to be accompanied by a solicitor under their contract of employment or if an employee is disabled, legal representation may be considered to be a reasonable adjustment, there is no general right for an employee to be accompanied to a disciplinary hearing by a legal representative. However, in situations where the outcome of disciplinary proceedings is so serious as to impact on the employee’s future career, the employee may be entitled to legal representation at a disciplinary hearing.
The right to practise a profession
This is a developing area of law and to date, the Court of Appeal (“CA”) has heard two cases on this issue. In Kulkarni v Milton Keynes Hospital Foundation NHS Trust [2009], a part-qualified doctor was suspended following an allegation of misconduct with a female patient and was contractually entitled to legal representation at a disciplinary hearing where he was facing what was effectively a criminal charge. In R (on the application of G) v X School and others [2010], a teaching assistant was facing charges of sexual impropriety with a pupil. The CA decided that the employee was entitled to legal representation at the internal disciplinary hearing. Approving comments made in Kulkarni, the CA held that the right to a fair hearing under Article 6 of the European Convention on Human Rights includes a right to legal representation where the issue or allegation to be determined is sufficiently serious to warrant legal representation. There were potentially serious consequences for the employee in G v X School, including being reported as unfit to work with children, which would ultimately affect his ability to work as a teacher and potentially deny him the right to practise his profession (a civil right within the meaning of Article 6).
The decision in G v X School can be contrasted with the decision that was taken recently by the High Court in R (Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011]. An NHS surgeon was dismissed by the Trust and the Court held that Article 6 did not apply because the outcome of the disciplinary proceedings would not have deprived the surgeon of his right to practise his profession. Neither the loss of the surgeon’s job with that particular employer nor the damage to his reputation was sufficient to engage Article 6.
Automatic right?
Case law therefore suggests that there is no general, automatic right to legal representation at internal disciplinary hearings. In determining whether the right arises, the key test to consider is whether the outcome of the disciplinary proceedings will have a “substantial influence or effect” on the employee’s right to practise his or her chosen profession.
It is clear therefore that if there are potentially serious and damaging consequences for the employee’s future career, such as never being allowed to practise his or her chosen profession (not just the loss of a specific job), the right to legal representation is likely to arise.
Public sector employers only?
As Article 6 is directly enforceable against public sector bodies, the above decisions have direct application to public sector employers. However, employment tribunals are obliged to interpret UK legislation in a way that is compatible with Article 6 and, therefore, private sector employees are likely to argue that they should too be entitled to legal representation if the result may be losing the right to practise their profession or losing professional authorisation under a regulatory body.
Supreme Court decision
The case of G v X School was heard by the Supreme Court on 11 April 2011 and the decision is awaited. If the CA’s decision is upheld by the Supreme Court, it is hoped that clarity will be provided as to when the right to legal representation at disciplinary hearings will and will not arise, particularly in relation to private sector employers.