Employers are increasingly receiving requests for legal representation at internal dismissal meetings, in the wake of two recent decisions which held that employees should be entitled to have their solicitor present if a dismissal meeting is covered by Article 6 of the European Convention on Human Rights (the right to a fair trial). As such meetings are likely to be ever more common as redundancy and reorganisation dismissals increase, employers will be pleased to note that, this month, the Court of Appeal has confirmed that Article 6 will apply to disciplinary meetings only in very limited circumstances. Julian Hoskins traces the case law on this topic, and sets out this latest decision on when Article 6 may be engaged – this time in the context of an NHS contract governed by the MHPS procedure.
In general, employees are usually only entitled to be accompanied at disciplinary hearings by a colleague or a trade union representative. There is no standalone right under UK law to legal representation at a disciplinary hearing.
However, Article 6 of the European Convention on Human Rights (ECHR), enacted in the UK through the Human Rights Act 1998 (HRA), establishes a right to a fair trial to determine ‘civil rights and obligations’. The HRA is directly enforceable against public sector employers; and it is arguable that it is indirectly enforceable against private sector employers, because employment tribunals are required to interpret UK legislation in a way which is compatible with Article 6.
It has been successfully argued that employees may be entitled to legal representation at a disciplinary hearing, if the issues at stake are of sufficient importance to engage Article 6.
In Kulkarni v Milton Keynes Hospital Foundation NHS Trust the Court of Appeal held that a doctor's contract of employment entitled him to be represented by a lawyer at a disciplinary hearing and that Article 6 was engaged. The doctor in question was accused of a criminal type of charge, and if the hearing had found against him, it would have prevented him from pursuing his medical career.
A similar case was decided the following year. In R (on the application of G) v X School and others it was held that a teaching assistant was entitled to legal representation at a disciplinary hearing. This was because, if the allegations had been upheld, he would have been reported to the Independent Safeguarding Authority as unfit to work with children and this would have had a substantial effect on his ability to practise his profession. The right to practice a profession was deemed to be a ‘civil right’ within the meaning of Article 6, so the HRA was engaged.
This month, in Hameed v Central Manchester University Hospitals NHS Foundation Trusts, the Court of Appeal confirmed the narrow scope of the application of Article 6 in respect of disciplinary proceedings.
Dr Hameed was a staff grade ophthalmologist employed by Central Manchester University Hospitals NHS Foundation Trust (‘the Trust’). Following disciplinary proceedings, based on the Maintaining High Professional Standards in the Modern NHS (MHPS) procedure issued by the Department of Health, Dr Hameed was dismissed for gross professional misconduct. Dr Hameed argued that Article 6 of the ECHR applied to the Trust’s procedure, and her right to a fair hearing had been infringed because the Trust had appointed to the disciplinary panel only one non-Trust employee. This, Dr Hameed argued, meant that the panel was insufficiently independent.
The Court of Appeal distinguished Dr Hameed’s circumstances from those of Dr Kulkarni. In Kulkarni, the doctor in question was a trainee, who would not have been able to complete his medical training if the allegations against him were upheld. The right to practice one’s profession was held to be a ‘civil right’ and, therefore, Article 6 was engaged. By contrast, the only right at risk for Dr Hameed was her right to practice as doctor for the Trust; a finding of gross misconduct would make it difficult, but not impossible, for Dr Hameed to work as a doctor again. The Court of Appeal noted that NHS authorities do sometimes employ practitioners who have been subject to disciplinary findings and an employer (whether within the NHS or the private sector) may feel that Dr Hameed is employable, albeit with careful supervision. The Court of Appeal therefore decided that:
- Dr Hameed’s circumstances were very different from Dr Kulkarni’s;
- there were no relevant exceptional circumstances; therefore,
- Dr Hameed could not rely on Article 6 rights in respect of the disciplinary proceedings against her.
In its judgment, the Court of Appeal noted the difficulty it causes for those conducting disciplinary proceedings if the scope of Article 6 has to be decided on a case-by-case basis, taking account of the severity of the charge, the prospect of the proceedings resulting in dismissal and / or the employee’s future employment prospects. However, the Court set out that the wide range of circumstances that could be covered by disciplinary procedures would tend to suggest that Article 6 is not usually engaged in relation to disciplinary proceedings taking place pursuant to MHPS.
What does this mean for me?
- The Court of Appeal has confirmed that the Article 6 right to a fair trial will only apply to disciplinary proceedings in exceptional circumstances – for example, where an employee stands to lose not only their employment with a particular employer, but also their ability to practise their chosen profession.
- In the Hameed case, the context was whether Article 6 applied to the constitution of a disciplinary panel, but the general principle is likely to apply across the board: the level of procedural protection under Article 6 depends on what is at stake, and the higher the stakes, the more likely it is that Article 6 will apply.
- Given the importance of these issues, the Court of Appeal has granted permission for Dr Hameed appeal against its findings in respect of the application of Article 6.