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Disciplinary hearings: representation

09 November 2010

As most employers will know, a worker’s right to be accompanied at a disciplinary hearing extends only to a work colleague or trade union representative. There is nothing in either the relevant ACAS code of practice nor the Employment Relations Act giving the right to legal representation. However, in two recent cases, the appeal court has now said that in some circumstances employees are entitled to a legal representative.

In the first case( Kulkarni v Milton Keynes Hospital NHS Foundation Trust) Mr Kulkarni had been suspended following an allegation of misconduct. He claimed that he was entitled to legal representation at his disciplinary hearing. An NHS policy document provided that the Medical Protection Society (of which Mr Kulkarni was a member) could arrange a representative for him: that representative could be legally qualified but would not be allowed to act ‘in a legal capacity’. The appeal court concluded that it was meaningless to say that the representative could not act ‘in a legal capacity’ and they ruled that Mr Kulkarni was entitled to be legally represented.

At the same time, Mr Kulkarni had argued that he should be entitled to legal representation under the European Convention on Human Rights (ECHR). As he succeeded in his first argument, the appeal court did not give a formal decision on this. However the same issue came before them in another case (Governors of X School v R —on the application of G).

In this case there was no separate policy. Instead G, a teaching assistant who had been accused of forming an inappropriate relationship with a 15-year old boy, relied directly on the ECHR. Article 6(1) gives individuals a right to a fair trial and sets out what is required for a fair trial, which includes legal representation.

If the Governors of X School terminated G’s employment with them, this would lead to the matter being referred to the Independent Safeguarding Authority who could bar G from working as a teaching assistant. The court held that the seriousness of the consequence of dismissal meant that G’s right to a fair trial must be protected and he was entitled to legal representation.

Employers should not overreact since in most cases there is no right to legal representation. While the rights under the ECHR apply only to workers in the public sector, Mr Kulkarni’s case is a reminder that employers should be careful what is included in contractual policies and procedures. If not carefully drafted, there could be unintended and unwanted consequences.

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