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Legal representation in disciplinaries
In recent years there has been much debate as to whether the HRA is triggered by internal disciplinary hearings when a public body, such as an NHS Trust or a maintained school, dismisses an employee for gross misconduct. It has been argued that Article 6 (the right to a fair trial) is triggered where the outcome of the disciplinary is likely to have a serious impact on a person’s reputation and long-term ability to find work in their chosen field. The human right to a fair trial, if engaged, includes the right to:
• legal representation;
• an independent and impartial tribunal.
An internal disciplinary panel is not “independent and impartial”. Neither, normally, is the appeal panel responsible for reviewing the initial decision, even if it is made up of outsiders unconnected to the employer.
However, in Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust ([2012] EWCA Civ 641), the Court of Appeal decided that the human right to a fair trial is not triggered by internal disciplinary hearings. This is because these proceedings do not decide civil rights. Instead, they involve the exercise of contractual rights, under the contract of employment. Civil rights are decided at a later stage, in a claim for unfair or wrongful dismissal before the Courts, when human rights are definitely engaged.
The only narrow basis on which it is still possible to argue that the right to a fair trial is engaged by internal disciplinary proceedings is where an employer’s decision is likely to have a major influence over the outcome of a later, separate decision (such as a decision to strike a name off a professional register) that will result in that person being excluded from his or her profession. In these limited circumstances, it might still be possible to argue that the right to a fair trial applies to the internal disciplinary hearing. However, the case of Re (G) illustrates that such a scenario is likely to be very rare:
G was a primary school teaching assistant accused of forming an inappropriate sexual relationship with a 15 year old work experience student. He was dismissed following an internal hearing at which he was denied legal representation. He argued that Article 6 (the right to a fair trial) was engaged because the effect of the dismissal decision would be a referral to the Independent Safeguarding Authority (ISA), which had the power to prevent him working with children.
The Supreme Court decided that Article 6 is engaged in an internal disciplinary hearing where its result is “likely to have a major influence over the outcome” of a separate decision, for example, to ban someone from working with children. However, they then went on to conclude that in this case, the ISA was required to make its own independent findings of fact, and to exercise independent judgment to decide whether or not to place G on the list. As a result, Article 6 was engaged by the ISA proceedings themselves, but not by the employer’s decision to dismiss.
Re (G) v Governors of X School [2011] UKSC 30
A dismissal in breach of the human right to a fair trial will rarely be fair. Whether or not it is fair will depend on all surrounding circumstances, for example whether there was an opportunity for legal representation on appeal (Ministry of Justice v Parry (UKEAT/0068/12/ZT).
As a practical matter, it is worth noting that in Parry, although the claimant was refused legal representation at her internal hearing, she was allowed to produce written representations from her solicitors.
Occasionally, there is a right to legal representation under a contractual disciplinary procedure (see, for example, Kulkarni v Milton Keynes Hospital NHS Foundation Hospital Trust [2010] ICR 101).