For some years (since the Employment Relations Act 1999) all employers have ensured that employees are provided with their statutory rights to be accompanied by a trade union representative or fellow worker at any disciplinary hearing.
Some employees ask for a legal representative in disciplinary proceedings. Two cases in 2009 explored whether there might be a breach of the European Convention of Human Rights (ECHR) if this was denied:
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The first case concerned a provisional listing on the Protection of Vulnerable Adults (POVA) list in relation to a care home (Wright v the Secretary of State for Health)
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The second case concerned the Education Act 2002 and Regulations thereunder (R(G) v The Governors of X School and Y City Council (2009)).
For employment lawyers, however, the key case has been Kulkarnie v Milton Keynes Hospital NHS Foundation (2009).
Very briefly, Dr K was suspended pending investigation when a patient made a complaint that he placed a stethoscope under her knickers without her consent. A CRB check revealed that in previous employment he had been prosecuted for an offence of sexual assault on a patient and had been acquitted after trial. The Trust employer was asked to exercise discretion to allow legal representation at the disciplinary stage in view of the complexity and potential seriousness of the case.
Much of the Court of Appeal decision concentrated on various contractual issues and interpretation of the contractual rights between Dr K and the Trust. However, although not central to the decision in this particular case the ECHR was considered and the Court pointed out that wherever an employer receives a request for the employee to be legally represented he should consider the request fairly and rationally where the outcome of a denial of full rights of representation might be a breach of ECHR.
Are you affected?
Not only doctors are affected by the decision. Taking into account the three decisions and the trend of the Courts together this line of reasoning is likely to be applied to all professional people working in the public sector whose future career may be affected by particular changes in a disciplinary hearing. The decision is of crucial importance to, for example, teachers; those working in the caring profession including those employed in care homes and those working in the financial and legal services sector. Any employer who is effectively a near monopoly employer or where the sector is very restricted should seriously consider allowing legal representation if it is requested in the case of a disciplinary hearing of some substance.
For more information on this or any related topic please contact Holly Dobson on 0114 266 6660 or email [email protected].
