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Are employees entitled to legal representation at internal disciplinary meetings?

The Current Rule

The general rule is that an employee who is called to a disciplinary hearing has the right to request to be accompanied by a fellow worker, a trade union representative or an official employed by a trade union. Unless the contract of employment or disciplinary procedure says so or the employer consents, an employee is not entitled to be accompanied by a lawyer. The Court of Appeal (CA) has confirmed that employees accused of an offence, which is of such gravity that, if proven, will effectively block them from continuing their profession, may insist on legal representation at the disciplinary and appeal hearings. 

Defining Case Law

In The Governors of X School v R (on the application of G) [2010] EWCA Civ 1, G was employed as a music assistant at a primary school (the School). The School dismissed him following allegations that he had sexual contact with a child. It refused G's request to have legal representation at the disciplinary and appeal hearings.

As required by law, the School informed the Secretary of State for Children, Schools and Families (the Secretary of State) that it had dismissed G on the ground that he was unsuitable to work with children. At the time, the Secretary of State had the power to direct that G be added to the list of people prohibited from working with children in educational establishments ("List 99"). This system has been replaced by a new vetting system governed by the Independent Safeguarding Authority (ISA). The ISA now decides whether to bar individuals from working with children or vulnerable adults and maintains two lists containing the names of those barred.

G claimed that his right to a fair trial under Article 6 of the European Convention of Human Rights (ECHR) had been breached and he should have been allowed legal representation. Article 6 states that:

  1. individuals have the right to a fair and public hearing in relation to the determination of their civil rights, obligations or criminal charges; and
  2. anyone charged with a criminal offence has the right to legal representation and to cross-examine witnesses.

The CA confirmed that the right to practise a profession was a "civil right or obligation", that an ISA listing would fundamentally limit G's ability to practise his profession and that the School's internal process would have a "substantial influence or effect" on the decision-making of the ISA. G was therefore entitled to legal representation at the disciplinary and appeal hearings.

Decision Followed

The CA followed its decision in the earlier case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789. Dr Kulkarni was accused of placing a stethoscope under a patient's knickers without her permission during an examination. He was suspended with immediate effect, pending an investigation and not allowed legal representation at the disciplinary hearing. He appealed to the courts on the basis that this infringed his rights under Article 6. The CA found Dr Kulkarni had a contractual right under the NHS disciplinary procedure (which applies to doctors and dentists) to legal representation at a disciplinary hearing. Further, denying Dr Kulkarni legal representation could infringe his rights under Article 6. The charges and the possible consequences of the disciplinary action were extremely serious. If proven, they would leave Dr Kulkarni unable to complete his training and unemployable. The CA's view was that where an employee is facing something, which was similar to a criminal charge, there is an implied right to legal representation in civil proceedings.

Are all Employees Entitled to Legal Representation?

NHS-employed doctors/dentists have a contractual right to representation. Public sector employees who are facing serious charges which, if proven, could lead to being barred from practicing their profession (e.g. nurses, care workers) must be allowed legal representation if they so request. This is because Article 6 of ECHR applies to them.

What about private sector employees?

The ECHR does not apply to private sector employers. Their employees do not have a right to legal representation under Article 6. However, an employment tribunal must take into account the ECHR when deciding whether an employee has been unfairly dismissed. A tribunal could find that a private sector employee who was refused legal representation during the disciplinary process and dismissed in circumstances that could result in being deprived of the right to practise his/her profession (as opposed to losing a specific job) was unfairly dismissed. 

Private sector employers who employ:

  •  individuals to work closely with children and/or vulnerableadults;
  • professionals and who are obliged to report malpractice to a professional body with the power to strike off the employee from the profession

should seriously consider any requests for legal representation at disciplinary/appeal hearings and seek legal advice before reaching a decision. 

Author: Sandra Martins

Date: February 2010