The results of a recent client survey by Brodies LLP on disciplinary hearings point to a clear difference between private and public sector approaches to disciplinary process.
Employers in the private sector do not usually allow witnesses to attend disciplinary hearings or employees to be legally represented. This is in contrast with the public sector, where it is evident that policies are more likely to contain these rights and organisations may apply processes that can at times appear “quasi-judicial”. We look more closely at these differences and consider whether or not recent case law is likely to have an effect on policy development in both arenas.
Q Do public sector employees have the right to cross-examine witnesses at disciplinary hearings?
Ninety per cent of public sector organisations responding to Brodies’ survey have disciplinary policies that provide for the involvement of witnesses. However, even if there is no contractual right, public sector employees may be able to argue that they have a right to cross-examine witnesses, relying on the European Convention of Human Rights. Article 6 provides that everyone is entitled to a “fair and public hearing” and that anyone charged with a criminal offence has the right to legal representation and to cross-examine witnesses. In R on the application of Bonhoeffer v General Medical Council 2011 EWHC 1585, the High Court decided that, although there is no absolute right to cross-examine, if the allegations are particularly serious or there are potentially grave consequences for the employee (such as being barred from working in a profession) then it may be a breach of art.6 not to allow it.
Q Do public sector employees have the right to legal representation at disciplinary hearings?
Although only 30% of public sector respondents to Brodies’ survey allow legal representation, again employees could present an argument based on art.6. The Supreme Court held in R (on the application of G) v The Governors of School X 2011 IRLR 756 that where dismissal could lead to an employee being barred from working at all in their profession, they may have an implied right to legal representation at the disciplinary hearing – but only where the dismissal decision itself leads to the “barring” decision (often a separate body makes the “barring” decision after the dismissal). There is as yet no guidance on the extent of a lawyer’s role at a disciplinary hearing.
Q Would public sector employers ever have to pay for such legal representation?
There is nothing in the art.6 cases that requires an employer to pay for or arrange legal representation. However, art.6(3) gives those facing criminal charges the right to free legal assistance if required in the interests of justice. In an extreme case, therefore, an employee who cannot afford legal representation facing what is in effect a criminal charge (eg an allegation of sexual misconduct) might try to claim that it should be provided by the employer. It has been suggested, however, that it is highly unlikely that this would have to be granted.
Q Can public sector employees insist on a disciplinary hearing before an external panel?
When this question was considered by the High Court (in Hameed v Central Manchester University Hospitals NHS Foundation Trust 2010 EWHC 2009 and R (Puri) v Bradford Teaching Hospitals NHS Foundation Trust 2011 IRLR 582) it found that, in the circumstances, the right to a fair trial under art.6 did not extend to the right to require a disciplinary panel to be made up of external individuals. However, the Puri decision was appealed and is due to be heard by the Court of Appeal in the next few months. The argument in favour of a right to an independent disciplinary panel will be stronger where an effective monopoly employer is involved (eg the NHS) or if the employer is making a “barring” decision.
Q Should private sector employers be concerned about these developments?
The cases referred to all concerned public sector employees who can rely directly on art.6 to make a claim. Article 6 is not directly applicable in the private sector, although it must be taken into account by employment tribunals when applying general unfair dismissal principles. The Acas code of practice on disciplinary and grievance procedures states that employees should be given a reasonable opportunity to call relevant witnesses but does not mention either cross-examination or legal representation. Unless they have a contractual right (25% of those private sector organisations responding to Brodies’ survey provide for witness involvement and none allow legal representation), private sector employees have no direct basis on which to claim the right to cross-examine witnesses or legal representation.
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Julie Keir, professional support lawyer, Brodies LLP
