With the new Acas code referring to a right to call witnesses and recent cases suggesting that employees may, in some instances, be entitled to bring a lawyer to disciplinary hearings, employers could be forgiven for wondering if they are managing a business or a courtroom.
The vexed question of whether employees are entitled to legal representation at disciplinary hearings has now been considered by the Court of Appeal in Kulkarni v Milton Keynes Hospital Trust.
Dr Kulkarni was subject to disciplinary proceedings following an allegation by a patient that he had placed a stethoscope under her underwear without her consent. He claimed that the refusal of his request to bring a lawyer to his disciplinary hearing was a breach of his right to a fair trial. The High Court initially held that he was not entitled to legal representation. The potential professional ramifications for Kulkarni if the allegations were upheld were not enough to persuade the court otherwise.
The later High Court decision in R (on the application of G) v Governors of X School (which did not mention this case) seemed difficult to reconcile with this. G was a music assistant accused of having an inappropriate relationship with a 15-year-old boy. He was found to have a right to legal representation, on account of the gravity of the likely consequences (including a potential lifetime ban on working with children) should the disciplinary charges be upheld.
The Court of Appeal has now overturned the High Court decision and has held that Kulkarni has a right to legal representation. The finding was based on a specific contractual entitlement to legal representation in a Department of Health document applicable to doctors and dentists in England. However, the Court of Appeal’s comments on the human rights issue broaden the potential implications of the case well beyond this population.
The Court of Appeal went on to consider what it would have found if there had been no contractual right to legal representation. It considered that Kulkarni was entitled, under human rights law, to legal representation to secure his right to a fair trial. The court acknowledged the difficulty in drawing a line between cases in which the right is and is not engaged. The steer, however, is that where the outcome of the disciplinary hearing will impact on the employee’s ability to practise their profession, rather than just the loss of a particular job, denying a request for legal representation is likely to be a breach of the employee’s human rights.
This is not just a concern for public sector employers, whose employees can bring a freestanding claim for breach of their human rights. Tribunals are required to interpret unfair dismissal legislation so far as possible to comply with human rights law. When considering whether an employer has fairly dismissed an employee (whether in the public or private sector), any alleged breaches of human rights may be taken into account. Employers in regulated sectors – for example, the finance, education and medical sectors – should still give careful consideration to requests for legal representation, where the disciplinary charges may be relied on or referred to by a professional or regulatory body. Adjustments to policy may be in order. Note, however, that leave to appeal has been granted in both cases and further debate is likely.
Jennifer Hancock, senior solicitor, employment, Brodies