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Disciplinary hearings: the end of the lawyer?

Source: Public Sector Executive Sept/Oct 2012

Dave Palmer, a solicitor at national law firm Dundas & Wilson, explains the impact for the public sector of a recent court decision on legal representation at internal disciplinary hearings.

Having an employee’s lawyer involved in an internal disciplinary hearing can be a significant headache for a disciplinary manager. A recent court decision (Mattu v University Hospitals of Coventry and Warwickshire NHS Trust) clarifies that in most situations an employee has no right to be represented by their lawyer at an internal disciplinary hearing.

For a variety of reasons discussed below, the case has significant implications for the public sector.

Prior to 2009, it was generally accepted that lawyers had no place at internal disciplinary hearings. In the last few years several cases challenged this orthodoxy, arguing that the failure to allow legal representation at an internal disciplinary hearing infringed the right to a fair trial (the ‘Convention Right’) under the European Convention on Human Rights (which in broad terms is enacted into UK law by the Human Rights Act 1998).

The first of these cases, Kulkarni v Milton Keynes Hospital, suggested that the Convention Right would not apply to a disciplinary hearing unless the effect of the hearing could deprive the employee of their right to practice their profession. A narrow opening therefore emerged where certain employees could argue that they were entitled to legal representation if they may also lose their right to practice their profession.

Cases where the Convention Right were successfully invoked included care workers being placed on a list preventing them from working with vulnerable adults, and a teaching assistant being put on a barred list following alleged sexual impropriety with a pupil. The public sector was disproportionately affected because it has many employees from the education and care sector which could be placed on a barring list.

In addition, because employers like the NHS hold an effective ‘monopoly’, it was often easy for the employee to argue that their dismissal would prevent them from practicing their profession in future. And finally – and most importantly – public sector employees are in a stronger position to rely on Convention Rights than their private sector counterparts. It is generally unlawful for a public authority to act in a way that is not compatible with Convention Rights. Private sector employers are not under the same obligations.

By the time employers started to accept that legal representation may be appropriate in some cases, the courts started to reverse the trend, with cases taking a more restrictive approach to legal representation.

The decision in Mattu has (almost) put an end to the debate over this issue. A consultant complained his Convention Right was engaged because he would lose his ability to practice and complained that the disciplinary panel members hearing his internal case were not independent.

In a fairly emphatic fashion, the judges in this case clarified that an employee has no right to be represented by a lawyer at an internal disciplinary hearing because a dismissal does not determine an employee’s civil right.

They explained that the employee can still claim unfair dismissal to an employment tribunal, and the employer was simply exercising its contractual right to terminate the contract. The comments in the earlier Kulkarni case, which had caused so much uncertainty were expressly stated as not being the law.

There is one loophole remaining. Legal representation may still be permitted where there is a contractual right or a right under the employer’s policy to legal representation.

The court in Mattu did expressly deal with one situation where the court thought that legal representation may still be required in order for an employee’s convention rights to be upheld. The Convention Right could apply where the dismissal will have a substantial influence on later proceedings, for example, where a professional body has the power to prevent the individual from working in their job sector.

Overall, Mattu is welcome news for public sector employers. Whilst theoretically a very limited set of circumstances exist where employees could have the right to legal representation, in reality this case closes the door on the vast majority of requests for a lawyer to be present.

Arguably, this is the correct direction for the law to take. As any seasoned HR practitioner will be aware, disciplinary hearings are difficult enough without turning matters into a quasijudicial process by having two lawyers present. The whole thrust of government reform of workplace disputes in recent years has been to move towards early conciliation and mediation rather than turning boardrooms into courtrooms.

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