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Home / Yorkshire / Ward Hadaway: Employment Focus

Ward Hadaway: Employment Focus

Ward Hadaway: Employment Focus
News
August 07 2009
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    Alex Clements WH

Alex Clements
Partner
T: 0113 205 6710 

WardH                     

               

 

Legal representation at hearings

Employers are frequently asked by their employees whether they may bring their legal advisors into disciplinary hearings and other meetings which may result in a dismissal.  Traditionally the advice has always been to steer well clear – the relevant regulations permit the attendance of work colleagues or trade union representatives but most employers do not permit the attendance of lawyers for fear of escalating any dispute.

However a recent ruling in the Court of Appeal has raised some doubt as to whether this is the correct course of action. The case concerned a doctor employed within the NHS who was accused of serious misconduct towards a patient.  Given the serious nature of the charge he asked for his lawyers to attend the disciplinary hearing, but this was refused on the basis that the relevant trust’s disciplinary policy forbade this.  The doctor applied to the High Court for an injunction compelling the trust to allow his lawyer to attend. The High Court refused permission and the matter was referred to the Court of Appeal who held that the doctor was in fact entitled to legal representation.

Whilst the decision turned on the exact interpretation of the doctor’s contract, the Court of Appeal did make some comments of wider application.

The judgement does contain a suggestion that special consideration needed to be afforded to the fact that to all intents and purposes the NHS was a single employer and to lose his job with one trust had the practical consequence that the doctor in question would not work in the profession again.

Further the Court questioned whether to disallow legal representation was in fact a breach of Article 6 of the Human Rights Act, namely the right to a fair trial.  If this is correct, the right to a fair trial could theoretically extend to the right to have disciplinary issues heard by an independent panel.  As it is a public body, employees of the NHS are able to rely directly on the Human Rights Act in a way that those employed by the private sector are not.

Whilst the comments made by the Court are not binding on other courts, they do give a very clear steer as to which way the wind is blowing

So what are the practical applications of this case for employers?

  • The case has a very specific application to those employed within the health service as doctors or dentists because of the way the contracts have been drafted and it seems for those specific groups there may be a right to legal representations at disciplinary hearings.
  • For other employees within the public sector, an employer will need to actively consider whether or not the employee should be entitled to have a lawyer present at the hearing rather than just automatically refusing.  In cases where the conduct alleged is so serious, or goes to the heart of the professional nature of the role employers should consider whether ultimate dismissal may mean that the employee concerned may never work in that profession again.

If there is a real risk that dismissal may effectively mean the end of a professional career, then it may be appropriate to allow a lawyer to be present.

However, Article 6 only covers the right to a fair trial and would not seem to cover stages prior to the disciplinary hearing. Employers should therefore think very carefully before allowing lawyers to attend, for example, investigatory meetings.

  • The decision has a much lesser impact on the private sector. However, if this is indicative of the direction of judicial thinking, it is feasible that the courts and tribunals could decide that to deny the presence of a lawyer impacts on the overall “fairness” of a dismissal when it comes to determining unfair dismissal claims. It may therefore be sensible to give consideration to allowing lawyers to attend disciplinary hearings where the employee is accused of an act of misconduct so serious that if upheld, they may never work again. 

Above all, employers should bear in mind the importance of consistency in their decision making. Whilst a blanket ban on legal representation at internal matters may not be allowed for much longer, employers should ensure that clear and cogent thought is given to the reasons as to whether to allow the lawyers or not.

Alex Clements is a Partner in the Employment Team at leading North law firm Ward Hadaway. She can be contacted on 0113 205 6710 or at alex.clements@wardhadaway.com

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