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When should employees be allowed legal representation at a disciplinary hearing?

Anyone who has been following the story of Carol Hill, the Essex school dinner lady sacked for telling parents that their child had been bullied, may feel aggrieved at reports that she was not permitted to bring her lawyer into the disciplinary hearing which resulted in her dismissal. An employee facing allegations that could lead to them losing their job and potentially their career may be surprised to find that, although the Acas code on discipline and grievances states that employees should be permitted to bring a work colleague or trade union representative, there is no right to be represented by a qualified lawyer at the disciplinary hearing that decides their fate.

The reason behind this is to prevent a disciplinary hearing becoming a costly quasi-judicial process. If the employee is permitted to have legal representation, the employer will want to do likewise. The result could be a confrontational atmosphere at the hearing and the final decision being made on the basis of legal arguments at the expense of commercial considerations.

However, the general rule that employees are not entitled to legal representation has recently been challenged. Two recent cases have held that, in exceptional circumstances that could result in the individual's career being ruined, employees may have a right to be represented at a disciplinary hearing. 

The case of R (on the Application of G) v the Governors of X School and Another, which was decided in March this year. involved a teacher who had been accused of an inappropriate relationship with a pupil. He was not permitted to be accompanied by his lawyer at the disciplinary hearing and challenged the decision in the courts on the grounds that he was denied the right to a fair trial. The court held that because of the seriousness of the allegations, which could result in him being banned from working with children, he was entitled to legal representation.

In the case of Kulkarni v Milton Keynes Hospital Foundation NHS Trust, which was decided in August, the Court of Appeal held that a doctor who was alleged to have sexually assaulted a patient could have a right under the European Convention on Human Rights to legal representation in disciplinary proceedings. The court said that where the outcome of the proceedings is so serious that the employee could lose the right to practise in a particular profession, a refusal by the employer to allow the employee legal representation could be unlawful.

The potential implication of these decisions is that where an employee is facing dismissal in circumstances of serious gross misconduct which could amount to a criminal act, and as a result he may no longer be able to pursue his career, he could be entitled to legal representation at the disciplinary hearing. The decisions are of particular significance for the public sector. But employers who are disciplining Financial Services Authority-authorised individuals or other employees, who could be struck off by a professional body as a result of the disciplinary hearing, should also give fair consideration to any request to be accompanied by a lawyer.

If we return to Carol Hill, do the above cases mean that the school was wrong not to permit her lawyer to be present at the disciplinary? The answer is no. The circumstances in which she was disciplined were not so serious as to result in her not being able to work as a dinner lady or in a school again. However, Mrs Hill does have the right to be accompanied by a colleague or trade union representative and there is nothing to prevent her representative from having legal knowledge or qualifications. Indeed, trade union representatives will generally have an excellent grasp of legal issues and employers should not be complacent simply because a qualified lawyer is not involved.

Employers, particularly in the public sector, who are embarking on a disciplinary process, should therefore think extremely carefully about the potential consequences for the employee, and should ensure they take legal advice prior to any disciplinary proceedings that could result in termination of employment or the employee's chosen career.

Catrin Llewellyn is a solicitor at Reynolds Porter Chamberlain