Thursday, 11 Aug 2011
When disciplinary hearings become legal minefields
When a worker falls foul of company rules and disciplinary proceedings kick off, who they gonna call? Possibly not Ghostbusters, but it could be anyone from a lawyer to a colleague or their grandmother, depending on inclination and ever-evolving case law.
The matter has been tested and changed by a number of cases in recent years and shows the interplay of the European Convention on Human Rights on employment law. Article 6 says everyone is entitled to a "fair and public hearing" in relation to the determination of civil rights or obligations, and employees are now seeking to invoke this right in relation to disciplinary hearings. This is important for the public sector, as the HRA 1998 makes it unlawful for a public authority to act in a way incompatible with a convention right. The private sector should also take note as courts and employment tribunals, as public authorities, must observe the convention.
Employees have a statutory right to be accompanied to hearings by a colleague or union representative. This does not extend to legal representatives, friends or family. Employers are often concerned about the implications of extending the right of representation beyond the bare statutory entitlement as the process is already a balancing act. Employers have to comply with ever-changing rules on disciplinary matters which, if not conducted properly, could expose them to unfair dismissal claims.
Likewise, there is a fear of a creeping evolution which will see courtroom procedures imposed on disciplinary practices. There is concern, too, of a representational "arms race" - if employees insist on legal representation, employers will have to upgrade their weaponry, leading to it becoming a process of litigation, with all the related consequences of delay and expense this would entail.
In 2008 in Kulkarni v Milton Keynes Hospital Foundation NHS Trust, the Court of Appeal held that a doctor's contract specifically entitled him to be legally represented at an internal disciplinary hearing. However, having decided the case by reference to the employment contract, the Court of Appeal suggested that if it had considered this matter purely in terms of an Article 6 right, the circumstances (the employee was facing, in effect, a criminal charge) implied a right to legal representation.
More recently, the long-running case of R (on the application of G) v Governors of X School has now been heard by the Supreme Court. The applicant was dismissed by a school for indecent conduct with a 15-year-old boy. He argued that the refusal to allow a legal representative at his disciplinary hearing was in breach of Article 6.
The High Court and Court of Appeal found in his favour, indicating a general move to legal representation where charges were sufficiently serious and career-threatening. But the Supreme Court reversed the decision on the basis that there is no right under Article 6 to legal representation at a disciplinary hearing, where dismissal could lead to the employee being potentially barred from his profession - provided the decision to bar was sufficiently removed from the decision to dismiss. In this case, the school governors had to refer the employee to the Independent Safeguarding Authority (ISA) after the disciplinary hearing. The ISA decides if employees should be added to the "barred list". This meant there was not a sufficiently close connection between disciplinary proceedings and the independent decision as to whether he would be prohibited from working with children.
This decision will surprise those who had assumed, based on the reasoning in the Court of Appeal, that employees, facing career-threatening allegations would be entitled to legal representation. There is ambiguity in the courts' treatment of such cases, so an assessment of how the outcome will be referred to in subsequent decisions about fitness to work would be an appropriate preliminary step to take for employers in such situations. If a career would be ended by proceedings, it would be prudent to allow a legal representative to attend. Not to do so might amount to a breach of their Article 6 rights.
It's a complex matter - there could be more "final" words on the way.
To view the full article click here: Scotsman 8 August 2011