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Disciplinary hearings: the right to be accompanied by a lawyer?

‘I know my rights – get me my lawyer!’ This is the familiar cry of criminal suspects faced with a police interview; but what if it is an employee faced with a disciplinary hearing? Do they have the right to be accompanied or represented by a lawyer?

Beyond individual enhanced contractual rights, section 10 of the Employment Relations Act 1999 states that workers may only be accompanied to disciplinary hearings by a colleague or trade union representative. The Guidance for the ACAS Code on Disciplinary Hearings gives practical advice about this right, including what the companion’s role at a hearing is. Question answered? Unfortunately not. As is often the way with law, it does not end there.

Back in 2009, the Court of Appeal went some way to answering the question in the case of Kulkani v Milton Keynes Hospital. A doctor was accused of sexually assaulting a patient and duly dismissed at a disciplinary hearing. The main points of interest are obiter (comments made as an aside, which are persuasive but not binding on future cases) by Lord Justice Smith concerning Article 6 of the Human Rights Act 1998. Article 6 is the right to a fair hearing when charged with a criminal offence or in the determination of civil rights. Lord Justice Smith said that Article 6 could be relevant if the outcome of proceedings could deny the employee the right to practice his or her profession (a civil right).

The Supreme Court had cause to reconsider Article 6 again in the case R (on the application of G) v Governors of X School [2011]. Here, a teaching assistant was dismissed for kissing a pupil. He was also facing an Independent Safeguarding Authority (ISA) panel to determine whether he should be placed on the barred list and therefore be prevented from working with children ever again. G argued that Article 6 was relevant because the disciplinary hearing would have an impact on the ISA and he should therefore have been represented. Like Dr Kulkani, G’s profession (and civil rights) were at stake, not just one particular job. The court decided however that, on the facts, the disciplinary proceedings would not have a substantial influence on the ISA and so it was not unfair for the school to deny him a lawyer, as his civil rights were not being determined.

It is worth noting that the Human Rights Act is only binding on public authorities. Therefore, bodies such as the NHS are more ‘at risk’ of falling foul of Article 6 but private organisations should not drop their guard, as the Employment Tribunals, being a public authority, are also bound to interpret the law so that it is compatible with the Act.

In general, the vast majority of employers will be on safe legal ground in denying employees legal representation at disciplinary hearings. However, if a very serious allegation that could end the employee’s profession has been made and if there are proceedings that could determine this civil right (e.g. by professional regulators such as General Teaching Council or ISA), employers should think carefully about denying legal representation outright and consider taking legal advice. They should weigh up the harm that could be done by a lawyer attending the hearing versus the harm that could be done after any dismissal.

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Posted on Nov 15th, 2011 by Lyons Davidson