Public sector employees may have the right to bring a lawyer to all disciplinary hearings should their dismissal prevent them from working in their profession in future, a law firm has warned.
A Court of Appeal decision published last week has opened up the question as to whether employees have the right to legal representation at internal disciplinary hearings, according to Eversheds.
The case involved a music assistant at a primary school, who was dismissed by a disciplinary committee following a complaint that he had kissed and had sexual contact with a 15-year-old boy, who was a work experience student at the school.
Prior to his dismissal, the claimant sought several times to be allowed legal representation at his internal disciplinary hearing. However, the local authority’s policy did not allow this and the school declined to permit him to bring a lawyer.
But the court found that, because the disciplinary proceedings were “a determinant of the claimant’s right to practise his profession”, Article 6 of the European Convention on Human Rights applied.
In this case, the court found that the claimant should be entitled to legal representation should he so choose.
Owen Warnock, partner at international law firm Eversheds, said the ruling was consistent with Kulkarni v Milton Keynes Hospital NHS Foundation Trust, heard earlier this year, in which the Court of Appeal ruled that doctors and dentists employed by NHS bodies in England were entitled to legal representation at disciplinary hearings.
He said: “This case is not authority for the proposition that employees have a right to legal representation at all disciplinary hearings. It does, however, mean that where the consequences of dismissal go beyond simply losing a job – ie, they could prevent an individual working in their profession in the future – employers should proceed with caution where legal representation is requested.”
Right to be accompanied at disciplinary hearings
XpertHR has a host of Frequently Asked Questions on the right to be accompanied at disciplinary hearings. They include: