Should legal representation be permitted in disciplinary hearings?

28 April 2011

The extent to which employees enjoy legally enforceable rights on human rights grounds to legal representation in disciplinary hearings remains unclear at the time of writing. However, it is doubtful if the presence of lawyers in disciplinary hearings is really desirable for either employees or employers, except in a very narrow category of the most serious cases.

The recent case of R (Puri) v Bradford Teaching Hospitals NHS Foundation Trust is another reported High Court decision in a dispute concerning employment disciplinary proceedings against an NHS doctor. It is one of a line of recent cases in which doctors and other professionals have challenged public sector employers in relation to their disciplinary procedures, arguing they are not compliant with the right to a fair trial as enshrined in Article 6 of the European Convention of Human Rights and our Human Rights Act 1998. One feature of these cases has been the argument that Article 6 is relevant (or, to use the legal terminology, ‘engaged’) not only in criminal, civil and regulatory legal proceedings, but also to internal employment disciplinary hearings, and that consequently employees should be allowed legal representation in disciplinary hearings.

The law in this area remains uncertain. It is hoped that some clarification will be provided by the Supreme Court, which is due to give judgement on an appeal in one of the earlier cases shortly. In the meantime, in summary the position is that in disciplinary cases of sufficient gravity (in which dismissal will not only mean the individual loses their job, but also loses their right to practise their professional generally) Article 6 is engaged.

Even when engaged, article 6 does not automatically require the employee to be allowed legal representation at the disciplinary hearing. But according to the Court of Appeal (the highest authority on the matter at this stage) if the stakes are sufficiently high (which generally they will be if Article 6 is engaged) then the employee is entitled to legal representation in the disciplinary hearing.

One of the problems is that the line between sufficiently serious cases in which Article 6 is engaged and cases of lesser gravity in which it is not, is difficult to draw in practice. Depending on their circumstances, the cases have gone in both directions.

In a case in which a trainee doctor was accused of criminal conduct and being a risk to patients, the court found that article 6 was engaged because the allegations were such that, if proven, the individual’s career in his chosen profession would be over. He would never be able to work in the NHS again and would not be able to complete his training, so private work as a doctor would not be available either. Equally, a teaching assistant accused of sexual misconduct towards a fifteen year old pupil was found by the High Court and Court of Appeal to be entitled to legal representation in the internal disciplinary hearings.

In other cases involving less serious allegations the opposite conclusion has been reached. In R (Puri) v Bradford Teaching Hospitals NHS Foundation Trust a doctor who was dismissed for alleged rude, aggressive, abusive and inappropriate behaviour was unsuccessful before the High Court in his argument that the disciplinary proceedings needed to be carried out in compliance with Article 6. It was found that his civil right to practise his profession was not at stake in the disciplinary hearing, even if his job was. The court accepted that whilst it may be difficult for the individual to find future work as a doctor, it was not clear that his career would be finished altogether if he was dismissed. The Court also held that, even if the doctor had succeeded in arguing that Article 6 was engaged in this case, it would have found the disciplinary proceedings compliant with Article 6 in any event.

In this case, the NHS Trust employer decided to allow legal representation at the disciplinary hearing. Therefore the key issue was not the right to legal representation itself, but rather the composition of the panel hearing the allegations and the employee’s objection to the fact that members of the panel were employed by the Trust itself, meaning that in his view those members were not sufficiently independent and impartial.

Few would argue that in a small minority of disciplinary cases in which regulated professionals face such serious allegations that in effect their ability to work again in their chosen profession is at stake, there is logic in allowing legal representation in the disciplinary hearing. With the individual’s entire career at stake, they should be given every opportunity to clear their name. However, we should not lose sight of the fact that such cases are the exception, rather than the rule, and in most circumstances it is not necessary or desirable for lawyers to attend employment disciplinary hearings.

If the individual has legal representation in the hearing, the employer is also likely to bring a lawyer. The effect is inevitably to make disciplinary hearings more complex and formal. Legal representation in disciplinary hearings also tends to involve delay and additional cost to both parties, as well as an emphasis on the legal issues, rather than the practical ones. In the end, I fear the only people who would really benefit from a general principal allowing legal representation at employment disciplinary hearings would be employment lawyers.

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