Q: Does an employee have a right to legal representation at a disciplinary hearing?
Zoe Lagadec, principal solicitor at Mulberry’s Employment Law Solicitors answers…
No. While the Trade Union and Labour Relations Act gives an employee the right to be accompanied to an internal disciplinary hearing by a trade union representative or work colleague, it doesn’t entitle an employee to be represented by a a lawyer. Such a right could be included in an employee’s contract of employment or employer Staff Handbook, but this would be unusual.
However, Article 6 of the European Convention of Human Rights (ECHR) guarantees procedural safeguards at hearings, which will amount to a “determination” of an individual’s “civil rights and obligations”.
In a number of public sector cases, the right to be accompanied by a legal representative was confirmed if such rights would be determined at the disciplinary hearing and where the potential outcome of the proceedings was serious enough to prevent the employee from practising their profession or trade, either by being legally barred or making future employment in that sector extremely unlikely. The reason these decisions relate to the public sector is that the Human Rights Act (which incorporates the ECHR into domestic law) cannot be enforced directly against a private sector employer,
Two cases are of particular note. In the first, a junior doctor was facing allegations of sexual misconduct which if upheld would not only lead to his dismissal but also to an effective bar on his ability to continue practising as a doctor within the NHS. He was entitled to legal representation because the impact on him could not only end his employment but his entire career. In the second case a teacher was facing allegations of sexual assault, although no criminal charges were being pursued.
In the teacher’s case the Supreme Court held unanimously that Article 6 is engaged in internal disciplinary proceedings if they will have a “substantial influence” on future proceedings which are likely to determine a civil right. Here there was no such influence. The hearing would not have had a substantial influence on the Secretary of State’s decision as to whether to place the teacher on the list of people barred from working with children.
Consequently he was not held to have had the right to legal representation. This judgement contrasts with the earlier decision of the Court of Appeal in the junior doctor’s case. That case was decided in the doctor’s favour on contractual grounds and so the Court did not have to rule on his rights under Article 6; but it indicated that it would have found in his favour in that respect also because the NHS is effectively a national employer and a disciplinary finding against him by his employing Trust would have made it impossible for him to work elsewhere in the health service.
Therefore, when faced with a request to allow legal representation at an internal disciplinary hearing, public sector employers will need to assess in each case what impact a decision to dismiss might have on the employee’s ability to continue working in their chosen profession.
In cases where that issue will ultimately be determined by an independent third party, such as a regulatory body, the employer can be reasonably sure that refusing legal representation will not amount to a breach of Article 6, even if in practice the employee may find it very difficult to find a new job.
However, if there is any doubt on this issue, it is safer to say agree to legal representation – but it will be important to consider whether by doing so the employer will be setting a precedent.
It is less likely, but not impossible, that private sector employers will also find themselves in a similar position. If so it would be advisable to comply with Article 6, and allow an employee legal representation, if it would be engaged in analogous circumstances in the public sector (ie where the outcome of the disciplinary hearing would have a serious impact on the employee’s ability to practice their profession or trade).
The reason for this is that, if a dismissed employee were to pursue a claim for unfair dismissal, the tribunal may, when deciding on the fairness of such a dismissal, expect a private employer to have granted a request for legal representation in circumstances where Article 6 would have applied, had the same case arisen in the public sector.
From a practical perspective it might also be advisable to allow an employee to bring his or her legal representative in order to afford the employee the support they need and to ensure that the proceedings are held to be as fair as possible, thereby avoiding any suggestion of unfairness from the outset.
Of course, with Brexit on the horizon it remains to be seen how – or if – the case law will develop.