It is well known that when an employee attends a disciplinary hearing, they have a statutory right to bring a colleague or a trade union representative to accompany them at the hearing. A number of recent cases appeared to be showing a growing trend of increasing the scope of this right to include legal representation in certain circumstances. However, the Supreme Court’s most recent decision in R (on the application of G) v Governors of X School has nipped this growing trend in the bud.
The right was first raised in the case of Kulkarni v Milton Keynes Hospital. Disciplinary action was taken against Dr Kulkarni for inappropriately touching a patient. The Hospital refused his request to have a legal representative present at the disciplinary hearing. The Court of Appeal found that Dr Kulkarni was entitled to have a legal representative present at the disciplinary hearing. The Court of Appeal opened up the potential scope of this right significantly as they suggested there may be a human right under the Human Rights Act to legal representation at internal disciplinary hearings in certain circumstances, specifically when dismissal may result in the employee being prevented from working in their chosen profession in future. This is usually where the conduct would be reported to a governing body which could then result in an employee being struck off from practicing their profession.
Later in the case of R (on the application of G) v Governors of X School, disciplinary action was taken against a teaching assistant who was alleged to have had inappropriate sexual contact with a pupil. He claimed the right to have a legal representative at the School’s disciplinary hearing. The Court of Appeal confirmed the teaching assistant’s right to legal representation as he, if found guilty of the allegations, was likely to be reported to the Independent Safeguarding Authority which would prevent him from being a teaching assistant in future.
These decisions appeared to have opened the floodgates for all sorts of professionals to claim the right to be accompanied by a legal representative at an internal disciplinary hearing; doctors; teachers; solicitors; carers, nurses; doctors; accountants; surveyors and more.
However, this right has been severely limited by the Supreme Court which has overturned the Court of Appeal’s decision in R (on the application of G) v Governors of X School. The Supreme Court held that the teaching assistant in that case had no right to legal representation at the School’s disciplinary hearing. The School’s decision to dismiss him for gross misconduct would not be the determining factor as to whether he would be able to work in the teaching profession in future. The School was under an obligation to report this to the Independent Safeguarding Authority and it would ultimately be that Authority’s decision whether to place him on the barred register or not – this would be the determining factor as to his ability to work in the teaching profession. He may be entitled to legal representation at that level, but the Supreme Court found that this right did not apply at the School’s internal disciplinary stage.
In summary, where an occupation is governed by an external body who determines whether someone may or may not practice that occupation then it is unlikely that an employee will be entitled to legal representation at the employer’s internal disciplinary hearing. This is a good result for employers as for the foreseeable future, the disciplinary hearing is likely to remain a lawyer free zone!
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])