Employment: right to legal representation at disciplinary hearings

Since 2000, workers have had a legally enforceable right to be accompanied at a disciplinary or grievance hearing. Who can act as the companion is restricted to either "another of the employer's workers" or a trade union official.

While these limitations have remained unchanged in most cases for almost a decade, where a possible outcome of the disciplinary hearing would result not only in the loss of the employee's job but also their ability to pursue their career, the right to legal representation must be considered.

In the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust, a male doctor faced disciplinary proceedings following an allegation of inappropriate conduct during an examination of a female patient. The issue before the Court of Appeal was whether in the circumstances of this case - where the employee was facing what was in effect a criminal charge - he was entitled to have legal representation at the internal disciplinary hearing.

The court said yes based on the wording of the NHS disciplinary procedure. The court found that Dr Kulkarni had a contractual right to be represented at an internal disciplinary hearing by a lawyer instructed by the Medical Protection Society. It follows that, any NHS-employed doctor or dentist facing disciplinary charges has the contractual right to a legal representative instructed by their medical defence organisation.

Having decided the appeal by reference to the employment contract there was no need for the Court of Appeal to go further. However, it did go on to consider whether the application of Article 6 of the European Convention on Human Rights was engaged. It is these obiter (persuasive but not binding legal authority) comments that have wider implications and are relevant to any public sector employee facing a threat to their continued career as a result of disciplinary action.

Acknowledging that it was difficult to know where to draw the line, the court suggested that Article 6 would be engaged when an employee faced circumstances that could result in them being deprived of the right to practise their profession as opposed to losing a specific job. Where they were facing what was in effect a criminal charge, a right to legal representation in civil proceedings was implied.

This is in line with another recent High Court case, R (on the application of G) v The Governors of X School and another. In that case, the High Court held that a school teacher had the right to representation by a lawyer of their choice at an internal disciplinary hearing which could lead to the teacher's name being added to the Protection of Childen Act (PoCA) list of those not allowed to work with children. The High Court expressly limited its decision to the facts of the case. However, recognising the case involves a point of law of public importance, this case has also been referred to the Court of Appeal which heard the appeal on 6 October 2009 but have not yet handed down judgement.

While we await direct Court of Appeal guidance, it appears the courts are developing a right for employees to have legal representation at internal disciplinary hearings in cases where disciplinary sanction could result in the individual no longer being able to pursue their chosen career.

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