"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
Decision date: 14 November 2012
EAT consider application of art 6 to internal disciplinary hearings and right to legal representation
The appellant employer appealed the decision of an Employment Tribunal (the Tribunal) that their dismissal of Ms Parry (P) from her role as a District Probate Registrar was unfair and wrong. They appealed on five separate grounds, the most relevant for present purposes relating to the right to legal representation.
In November 2009 P was found by her employer to be guilty of gross misconduct, namely the bullying and harassment of junior employees, and was dismissed. P appealed that decision and asked whether she could be represented at the appeal hearing by a solicitor. Her request was declined but representations were placed before the appeal panel by the solicitors. That appeal was dismissed. The matter was taken by P to the Employment Tribunal.
The Tribunal found that ‘the decision to dismiss was unfair primarily due to the Claimant having been dismissed at a point in the procedure where she had been assured she would not be dismissed but also due to the lack of legal representation and the fact that the dismissing officer did not approach his task with an open mind…’. (emphasis added by author).
The Employment Appeal Tribunals (EAT) allowed the appeal on all grounds, including that pertaining to the right to representation.
The EAT helpfully summarised the principles laid down in the cases of R (on the application of G) v Governors of X School  UKSC 30 and Mattu v University Hispitals of Coventry and Warwickshire NHS Trust  EWCA Civ 641. The principles outlined in those cases were affirmed. The EAT went on to highlight that the obiter remarks in Kulkarni v Milton Keynes Hospital NHS Foundation Trust  EWCA 789 have been held not to represent the law.
It was argued on behalf of the appellant that, applying G v Governors, in order for art 6 to be engaged there must be two sets of proceedings – an internal disciplinary hearing (proceedings A) and an outside body to determine the wider questions of continuation in practice in the profession (proceedings B). The EAT rejected that submission;
‘to hold a right fundamental is to demand that it be applied in substance, and not defeated by immaterial technicalities. The guarantees proved by art 6 in this area arise where a civil right is adjudicated upon in a manner which is dispositive of the right to practise one’s chosen profession, whether that be in one set of proceedings, in two or in more if there is a sufficient link between the proceedings’.
It was further argued on behalf of the appellant that the disciplinary proceedings merely determined the right of P to hold her particular job. There was no proper analogy, it was argued, with that of the case of a teacher or doctor, in each of whose cases a further body may give a ruling affecting their civil right to engage in their chosen profession, setting up a legal not a merely practical bar.
It was argued on behalf of P that she was both an employee and an office holder; she would not be able to practise as a District Probate Registrar without being an office holder. Removal from the list of Probate Registrars, it was said, was equivalent to an order made by the ISA or GMC; removal from the list would be a legal, as opposed to merely practical obstacle on re-employment as a Registrar.
In the event, there was no material before the original Tribunal as to the said ‘list’ or to its significance. It was not known whether inclusion on it was a necessary qualification for appointment.
It therefore followed that;
‘the Employment Tribunal was not in any position to determine definitively whether art 6 applied to the disciplinary hearing faced by Mrs Parry….First the tribunal was in error to decide the matter as it did, since it could not be satisfied that the hearing of the disciplinary appeal was dispositive not just of the Claimant’s contract of employment but also her entitlement to work again elsewhere as a Probate Registrar and thus follow her chosen profession; and secondly, we cannot therefore be satisfied that notwithstanding the material error we have identified the decision was plainly and obviously right’.
The other grounds of appeal were also upheld. The matter was remitted for complete rehearing before a fresh tribunal. It was said that if P sought, despite Mattu, to argue that art 6 required her to have legal representation then material must be put before the tribunal ‘which shows that a decision by the Lord Chancellor to recommend to her Majesty that the Claimant be removed from her office as District Probate Registrar in Leeds would have the effect of acting as a legal (as opposed to merely practical) barrier to her re-employment in her chosen profession’.
This case helpfully summarises and crystalizes the principles in R v Governors and Mattu. The guarantee provided by art 6 in this area arises where a civil right is adjudicated upon in a manner which is dispositive of the right to practise one’s chosen profession. This must be a legal bar and not merely a practical one. The obiter remarks to the contrary in Kulkarni were rejected.
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