The Human Rights Act and the right to be accompanied

Everyone has the human right to a fair and public hearing where a decision by a public body will have a decisive impact on their civil rights and obligations. Civil rights and obligations include employment law rights. That human right, where it is engaged, includes the right to legal representation, and to 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.

As public bodies, the decisions of employment tribunals must comply with the human right to a fair and public hearing, because they decide employment law rights. By contrast, an internal disciplinary hearing by a public sector employer only rarely triggers the right to a fair trial, because these proceedings do not decide civil rights. Instead, they involve the employer exercising its contractual rights under the employment contract (Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641).

The only time an internal disciplinary hearing may be subject to the human right to a fair trial is where the result of that hearing is likely to have a major influence over the outcome of a follow-up decision, for example, to strike someone off a professional register, which would result in that person being excluded from their profession (Re (G) v Governors of X School [2011] UKSC 30).

Very occasionally, a contractual disciplinary or capability procedure will give employees the right to legal representation at an internal disciplinary hearing. For an example, see Kulkarni v Milton Keynes Hospital NHS Foundation Hospital Trust [2010] ICR 101.