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Right to Legal Representation at Internal Disciplinary Proceedings

Under Section 10 of the Employment Relations Act 1999, there is a statutory right for workers to be accompanied at disciplinary and grievance hearings by a colleague or Trade Union official.  It is generally accepted that there is no entitlement under the Act or under the ACAS Code of Practice to have a legal representative present at the hearing, and requests for one are generally refused.

However, there have been two key legal decisions in recent months.  In R –v- Governors of X School & Another, the High Court held that in exceptional circumstances, where a disciplinary dismissal could lead to far-reaching consequences, legal representation may be required in order to comply with the right to a fair hearing under Article 6 of the European Convention on Human Rights.  The High Court considering Article 6, held that although G was not facing a criminal charge (in which case he would have been automatically entitled to legal assistance of his own choosing under Article 6 (3)), the serious nature of the allegations and the severity of the consequences meant that G was entitled to a commensurate measure of legal protection.  Accordingly, for the School to comply with the general principle of fairness in Article 6 (1) , accompaniment by a Trade Union official or work colleague was not sufficient and he should have been allowed representation by a lawyer at his hearings before the disciplinary and appeal committees of the School Governors. 

The Court of Appeal has also become involved in this debate in it’s recent decision in Kulkarni –v- Milton Keynes Hospital NHS Foundation Trust & Another.  In that case, the Doctor concerned argued that he had a contractual right to legal representation which succeeded before the Court of Appeal.  However, the Court went on to express the obiter view that where the employee is facing what is “in effect” a criminal charge, Article 6 implies a right to legal representation.  The Court of Appeal in Kulkarni noted that Article 6 is not engaged in disciplinary proceedings where “only” the loss of the employee’s job is at issue.  Article 6 compliance will only be required where the outcome is potentially more serious, such as the employee being deprived of the opportunity to practise his or her chosen careers.  Where an employee faces allegations of theft, or a sexual misconduct charge, deciding where to draw the line may be difficult.  If the findings are so damaging as to make it highly unlikely that employers in the same sector would employ that person in future, the implications are potentially as serious.

On the face of it, these decisions only directly affect public employers, who are required under the Human Rights Act 1998, to act in a way compatible with Convention Rights. It remains to be seen whether private employers can be similarly bound; for example, by an Employment Tribunal interpreting a requirement for reasonableness in dismissal under the Employment Rights Act 1996 to include Article 6 rights.

These decisions raise several practical implications.  For example, once the employer decides that the employee must be permitted legal representation, he might also decide to replace the HR person who would ordinarily sit in on the hearing with a qualified lawyer.  There is a risk of turning disciplinary hearings into “mini trials”.  Employers faced with a request for legal representation at disciplinary hearings will have to weigh up the potential consequences of a finding detrimental to the employee when deciding whether to agree to the request. 

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