Some employees will have the right to legal representation in disciplinary hearings

Published: 21st January 2010

A groundbreaking decision of the Court of Appeal has determined that employers must allow employees to be legally represented in internal disciplinary proceedings in certain cases where dismissal may result. Where an employee's right to practise his/her profession may be irretrievably prejudiced by dismissal, the Court have stated that the right to a fair trial under the Human Rights Act is engaged and this means he or she must be allowed a lawyer representing him/her. This definitive Judgment will clearly apply to a small number of disciplinary cases, but will also now inevitably open the door to similar arguments being pursued in almost any hearing which may result in dismissal.

In Governors of X school v G a teaching assistant was dismissed for a breach of trust arising from sexual misconduct with a pupil. As a result, the Governors reported him to the Secretary of State as they were obliged to do. That reference will be handled under the barred list procedure, which is highly likely to result in the ex-employee being prohibited from working with children and therefore following his chosen profession. The barred list procedure does involve a process by which this decision is considered and challenged, however the view of the Court was that as the disciplinary outcome drove the subsequent procedure, human rights obligations still applied to the internal hearing. The decision makes it very clear that in any future hearing where the dismissal of an employee may result in a referral under the barred list procedure, the employee must be given the opportunity to be legally represented.

This decision will unfortunately have far wider ramifications than allegations which relate to the care of children or vulnerable adults. The Court's view was that it's Judgment applied where there was a sufficient nexus between the internal procedures and any subsequent process which determined the individual's ability to follow their profession, referring to this being a test of substantial influence or effect. A number of legal test cases will inevitably follow to determine how broadly this applies and until we have such decisions the cautious approach for any employer faced with a hearing which may end someone's ability to follow their chosen line of work is to allow them to be represented by a lawyer. The decision is likely to apply to any misconduct hearing where dismissal may be an outcome (and some performance/capability hearings) for: any FSA regulated role; any professional role where reference will be made to a professional body (including solicitors and accountants); any doctors, nurses or other health professionals (as was suggested in Kulkarni but is firmly reinforced by this decision); and other regulated roles such as probation officers, social workers and police officers. What we will have to wait and see is whether subsequent cases extend the principle to any dismissal which may be argued to be such that the individual will never get a job again in their line of work, however this decision itself does not go that far.

What does this mean in practice where it applies? You must allow the employee to be represented by a lawyer of their choice. You are also subject to the obligation to ensure that the individual receives a fair hearing, making provision of documents and details of the case to answer in advance more important than ever. It is likely to mean that the representative has the right to question key witnesses in the hearing, although this will need careful consideration on a case by case basis. It will also require identification of the potential gravity of the allegation in advance of the hearing to decide if dismissal may result (or if obligations to report may be engaged).The additional question it will raise for you is whether you feel you need a lawyer present as well, to advise the disciplinary decision maker(s) and to assist in the conduct of the hearing. In many cases this may be a sensible approach.

If this decision raise any issues for your organisation, or you need assistance in considering the requests for legal representation which will inevitably follow from individuals and their Trade Union representatives, please speak to your usual contact in the Mace & Jones Employment team in Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.