Right to representation at internal disciplinary procedings

It has long been considered trite that, whilst an employee will be entitled to be accompanied by a colleague or a trade union representative at an internal disciplinary hearing, that right does not extend to legal representation. It now seems this is no longer quite the case.

You may recall a case earlier this year concerning a teacher successfully arguing, on Human Rights grounds, that he was entitled to legal representation at an internal disciplinary hearing because, had the allegations been upheld, his employer would have reported him to the Secretary of State on the basis that he was unfit to work with children. The High Court held in his favour because the gravity of the allegations meant that he was entitled to legal representation at the disciplinary hearing.

Now, hot on the heels of this case comes the Court of Appeal's decision in Kulkarni v Milton Keynes Hospital NHS Trust. This case now makes it clear that, where an NHS doctor or dentist in England is subject to a disciplinary hearing on misconduct or capability grounds, that person has the contractual right to a legal representative, instructed or retained by his medical defence organisation, at that hearing.

Of perhaps greater interest is a remark in the judgment which, whilst not forming part of the decision proper, suggests that Art 6 of the European Convention on Human Rights gives a free-standing right to legal representation at internal disciplinary hearings where the allegations are of such gravity a person might be unable to work in the future if they are proved. This would apply to all public sector workers, and is therefore of real significance.