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Disciplinary procedures land employers in hot water if staff feel their human rights have been breached

Should employers be concerned that their disciplinary processes may land them in hot water if an employee claims their human rights have been breached?

This was an issue faced by an NHS Foundation Trust recently and the results of the case have helped give guidance to employers facing similar claims.

Article 6 of the ECHR states that when making decisions concerning the "rights of individuals, everyone is entitled to a fair and public hearing by an independent and impartial tribunal".

In an employment context, there are two ways in which Article 6 will be relevant. Firstly, in some cases, an employee may have the right to legal representation at disciplinary meetings and appeals. Secondly, there may be a breach of Article 6 if the panel that has responsibility for making the decision is not "independent and impartial".

In a recent case, a consultant urologist from Bradford Teaching Hospital was dismissed for aggressive behaviour towards other staff. In accordance with the hospital's standard procedure, the panel which heard his appeal consisted of three employees from Bradford Teaching Hospital, advised by an external HR director.

The consultant urologist argued that his rights under Article 6 had been breached because the appeal panel was not impartial in that it consisted partly of employees from the hospital.

Firstly, the court found that Article 6 did not apply, as the consultant urologist was still able to practice within the medical profession even if this meant practising a different specialism, despite the negative effect that his dismissal may have had on his employment prospects.

Secondly, the court found even if Article 6 had applied, there was no evidence of bias. In addition, the fact that the constitution of the panel was in accordance with the hospital's rules, meant that there was no requirement for the hospital to justify its constitution.

The case raises the question: when does Article 6 apply to a disciplinary process? This case demonstrates, where an employee's dismissal will be career ending, Article 6 will always be relevant. It is important to stress that with the majority of disciplinaries, it will not be necessary to consider whether or not Article 6 applies.

What are the pitfalls if Article 6 does apply and an employer's disciplinary policy is not Article 6 compliant? Firstly, the dismissal would more than likely be unfair if challenged at an employment tribunal. In addition, the employee could sue the employer for a breach of their human rights, with the obvious risk of negative media attention.

The general principles of a fair hearing, as required by Article 6, are encapsulated in the ACAS code applicable to disciplinary processes and, therefore, at the very least, an employer's disciplinary policy should comply with this.

In order to be compliant with Article 6, an employer's disciplinary policy should allow an employee legal representation where a dismissal could put an end to the employee's career. Employers should also ensure that their policy sets out how the disciplinary and appeal managers or panels will be selected, so as to avoid the need to justify this later on, should Article 6 apply.

At present, Article 6 only applies to public sector employers. Nevertheless, courts and employment tribunals, as public sector bodies, are bound to give consideration to Article 6 when making decisions and, as such, the spirit of Article 6 may be relevant even where private sector employees are involved.

Laura Kearsley is an associate solicitor in the employment team at Weightmans