Employment rights at disciplinary hearings

Disciplinary Hearings and Representation

All Employees are entitled to be represented at a disciplinary hearing by a colleague or trade union representative in accordance with Section 10 of the Employment Relations Act 1999.

The employee’s representative should be given the opportunity  to speak at the hearing to put forward and summarise the employee’s case, and to reply on behalf of the employee to any issues raised. He/she should also be allowed an opportunity to confer with the employee during the hearing. However, the representative does not have the right to answer questions on the employee’s behalf, or address the hearing without the employee’s consent.

The ACAS code of conduct states that:

To exercise the statutory right to be accompanied workers must make a reasonable request. Whether a request for a companion is reasonable will depend on the circumstances of the individual case and, ultimately, it is a matter for the courts and tribunals to decide. However, when workers are choosing a companion, they should bear in mind that it would not be reasonable to insist on being accompanied by a colleague whose presence would prejudice the hearing or who might have a conflict of interest. Nor would it be reasonable for a worker to ask to be accompanied by a colleague from a geographically remote location when someone suitably qualified was available on site.

However it is becoming increasingly common for employees to request that an employment lawyer represent then during the disciplinary. An employee may find it difficult to request that a colleague attend with them or they may not be a member of a trade union. There is no right of representation purely because the employee cannot obtain the assistance of a colleague or trade union representative. There are however certain circumstances were an employer must consider a request for legal representation. These remain limited, and will be covered below, but this is an ever evolving area of employment rights and it is important that employers and employees alike keep abreast in order to properly understand their rights and obligations. It will continue to evolve as case law develops and courts and lawyers alike obtain a better understanding of the implications of Article 6 of the European Convention on Human Rights (ECHR).

Following R (on the application of G) v The Governors of X School, legal representation may be appropriate where any decision for dismissal can have potentially severe automatic consequences for an employee’s career. This applied Article 6 ECHR. The provisions have been applied to professions such as doctors where the decision of the employee dismissal could automatically prevent the employee continuing in that career.

Human Rights & Employment law

Provides that, in determining civil rights or obligations or criminal charges, everyone is entitled to a “fair and public hearing by an independent and impartial tribunal” (Article 6(1), ECHR). The Human Rights Act 1998 (HRA 1998) gives effect to this (and most other) Convention rights under the ECHR and makes them enforceable through the UK courts.

The Court of Appeal has considered the application of Article 6 to internal disciplinary hearings in public bodies during two cases, holding that Article 6 required the employer to allow the employee to be legally represented (Kulkarni v Milton Keynes Hospital Foundation NHS Trust [2009] IRLR 829; R (G) v Governors of X School and others [2010] IRLR 222).

The court suggested that Article 6 would not be engaged where only the loss of a specific job was at stake. However, it would be engaged where the effect of the proceedings could be far more serious, such as the loss of the claimant’s right to practise their profession. The court should apply the test set out in Kulkarni and G namely whether the outcome will have a “substantial influence or effect” on the employees right to practise. In Kulkani the employee was accused of criminal conduct which if proved would have effectively barred him from further employment with the NHS. As such, legal representation was appropriate in accordance with Article 6.

The decision in Kulkani means that any NHS Trust doctor (or dentist) facing disciplinary charges is likely to have a contractual right to legal representation where  the doctor is a member of a medical defence organisation and that organisation instructs an employment lawyer on his or her behalf.

In addition Article 6 may allow many medical professionals, including doctors, dentists and nurses, who are employed by the NHS to insist on the right to legal representation at disciplinary hearings where a potential outcome of the disciplinary hearing is the termination of their employment by the NHS. However the NHS has been granted leave to appeal the Kulkani decision and the full extent of this case is not yet known.

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