In July 2007, Dr Kunal Kulkarni began employment with the Trust as a junior doctor. Shortly after, he was suspended pending investigation of a serious complaint by a female patient. Kulkarni sought the advice of the Medical Protection Society (MPS) and was assigned a representative to deal with his case. The representative was not legally qualified. In November 2007, the Trust confirmed there would be disciplinary proceedings and stated that Kulkarni had the right to be accompanied by a representative “not acting in a legal capacity”.
The MPS challenged this, suggesting that the Trust had the discretion to allow legal representation, and that the complexities and potential seriousness of this case were such that the discretion ought to be favourably exercised. The Trust ultimately decided there were no exceptional circumstances that would justify deviating from its disciplinary procedure, which was based on the Department of Health’s ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS) policy.
The MPS’s solicitors wrote to the Trust questioning the legality of its contractual disciplinary procedures and threatening legal proceedings in the absence of a satisfactory reply. No reply was received, and in February 2008, Kulkarni issued proceedings seeking a declaration that the Trust was acting unlawfully and in breach of contract in refusing to allow him legal representation at his disciplinary hearing.
The High Court held that, in light of the express term in the Trust’s contractual disciplinary policy preventing legal representation, there was no room for an implied term providing a discretionary right. Alternatively, if there was the discretion to permit legal representation, there were no exceptional circumstances in the present case that would require the discretion to be exercised favourably. The court considered that the denial of legal representation did not amount to a denial of natural justice. Finally, it was not convinced that Article 6 of the European Convention on Human Rights (ECHR), which covers the right to a fair trial, was engaged in the context of disciplinary proceedings.
Kulkarni appealed. The Court of Appeal heard lengthy legal argument on the interpretation of the contractual terms governing Kulkarni’s employment. Ultimately, the court held that he was contractually entitled to be represented at his disciplinary hearing by a lawyer instructed by MPS.
The court then went on to make further obiter – opinions not essential to its decision – observations. It said that article 6 ECHR is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found to be proved, he or she will be effectively barred from employment in the NHS. The court also said that article 6 implies a right to legal representation in circumstances where an employee is facing what is, in effect, a criminal charge and where the consequences can be very serious. Permission to appeal to the House of Lords has been granted.
The ramifications of this judgment are important as they potentially extend well beyond the NHS. It suggests that public sector employees who work for ‘monopoly’ employers and who are facing serious, career-threatening disciplinary charges are entitled to a disciplinary hearing that complies with article 6 ECHR, including the right to legal representation.
There are a number of private sector professions, such as those regulated by the Financial Services Authority, in which dismissal for serious misconduct may have serious implications beyond the loss of employment. In such cases, where the misconduct alleged is serious, and the consequences of dismissal have such severe implications, employers would be advised to take advice on whether to allow an employee to be legally represented at a disciplinary hearing.
Kate Hodgkiss, employment partner, DLA Piper