3 Oct 2016
Lawyers have got excited about two recent cases: the High Court decision in the case of R v Governors of X School (regarding a teacher who was accused of kissing a pupil) and the Court of Appeal decision in Kulkarni v Milton Keynes Hospital NHS Foundation Trust (regarding a doctor who was accused of sexually assaulting a patient).
In brief, the courts decided that, in certain circumstances, an employee is entitled to be accompanied to a disciplinary hearing by their lawyer. The general position before these decisions was that employees had no right to legal representation at internal disciplinary hearings.
Since the Kulkarni case was a decision of the Court of Appeal (the second highest English court), this deserves more scrutiny. The case of R v Governors of X School will be heard by the Court of Appeal later this year.
The case of Kulkarni itself concerned specific facts about NHS rules on disciplinary hearings and by whom a doctor could be represented at that hearing. For these purposes, there is no need to focus on the facts of the case.
The issue of potentially broad application is that the Court of Appeal chose, even though it was not necessary for dealing with the case itself, to consider the issues of a right to legal representation and the right to a fair hearing under Article 6 of the European Convention on Human Rights (ECHR).
According to the Court of Appeal, Article 6 of the ECHR is not relevant in ordinary disciplinary proceedings where what is at stake is the loss of a specific job. However, Article 6 is relevant where the effect of the proceedings is more serious and could deprive the employee of the right to practise his or her profession. (This scenario was at play in this case i.e. where an NHS doctor faced charges of such gravity that, if proved, he would effectively be barred from employment in the NHS). In the Court’s view, Article 6 of the ECHR entails a right to legal representation where the individual is facing what is, in effect, a criminal charge, although it is being dealt with in disciplinary proceedings.
The Court of Appeal acknowledged that it may be difficult for employers to determine whether or not Article 6 applies in any given situation. However, it warned that if an employee requests legal representation and the employer refuses, in circumstances where Article 6 is engaged, this refusal by the employer would be unlawful.
The case would seem to apply to internal disciplinary proceedings which could result in dismissal in any other of the occupations which are subject to professional regulators and in which dismissal would have the effect of preventing the employee from working in their profession.
Various questions arise from this case:
1.What are the circumstances where an employee may have a lawyer present at a disciplinary hearing? Is there really a meaningful distinction between the loss of one job and the inability to practise a profession? In a recession, the loss of one job might mean an extended period of unemployment. Certain grounds for losing a specific job (e.g. sexual harassment) carry with them significant stigma and therefore may have long-term adverse effects on securing a new job. So there is certainly an argument for extending the principle to apply to any dismissal.
2.Should legal representation only be allowed where dismissal is the sanction or should it be allowed in respect of a less serious sanction which either might adversely effect the employee’s career in its own right or be an important step on the path to subsequent dismissal?
3.Who will pay for the legal representation? As with compromise agreements, employees may well feel that employers should pay or contribute to legal fees, particularly if the allegation is proved to be unfounded. However, there would inevitably be resistance to this and in this climate, it seems very unlikely that any employer would agree to cover this cost.
4.Could this be a bar to effective internal resolution of disputes? There seems a real risk of this – in a more informal hearing, the parties may well be able to deal with the matter between themselves but with lawyers involved, the parties themselves may engage less, they may become more entrenched and the hearing may start to resemble a trial. This cannot be in the best interests of the parties.
The case is being appealed to the Supreme Court so the decision may not stand but in the meantime, it is a significant development. Given that it is being appealed, it is probably premature to start amending your disciplinary procedure documents at the moment, but this may be necessary if the Supreme Court upholds decision.
The practical lesson for now is that if an employee requests legal representation at a disciplinary hearing which may lead to his or her dismissal, you would be well-advised to give the request detailed consideration. Ensure that you consider it fairly and rationally and then document your considerations and the reasons for your decision.
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