Right to legal representation at disciplinary hearings

24 April 2009

Summary
We examine a recent case which, although concerning teachers, could have far-reaching implications for the NHS where the same “notification” consequences may result.

Last month the High Court considered a judicial review application in R (on the application of “G” v Governors of “X”) [2009] EWHC504 (the G Case). It decided that where the substance of disciplinary investigations could lead to the employee’s name being added to the Protection of Children Act (POCA) register of persons deemed unsuitable to work with children, the employee may be entitled to be legally represented at a disciplinary hearing. (This applies equally to the Protection of Vulnerable Adults (POVA) register).

The decision is inconsistent with the High Court’s findings in Kulkarni -v- Milton Keynes Hospital NHS Trust [2008] EWHC 1861 (Kulkarni). In Kulkarni, the High Court held that a doctor accused of inappropriately examining a patient was not entitled to legal representation at an internal disciplinary hearing (Kulkarni was not referred to in the recent Judgment).

The G Case
G was a part-time music teacher. Disciplinary proceedings were instigated against him following alleged acts of abuse of trust involving a 15-year-old male pupil. He was dismissed after an internal disciplinary hearing in February 2009. Before the disciplinary hearing, G was told that he was entitled to be represented by a trade union official or a colleague, in accordance with the school’s policy and Section 10 of the Employment Relations Act. G did not have a suitable colleague to accompany him and was not a member of a trade union. The school refused G’s solicitor’s request to provide legal representation at the disciplinary hearing. G applied for judicial review of the school’s decision not to allow him legal representation.

Under Section 142 of the Education Act, the school was obliged to inform the Secretary of State that it had grounds to believe that G was unsuitable to work with children. If the Secretary of State agreed with the school’s direction, G would be placed on the POCA register.

The High Court found that, as the disciplinary proceedings were so closely linked to the Secretary of State’s investigation, and the Secretary of State did not have to reinvestigate the facts surrounding the allegations, the disciplinary proceedings and the Section 142 direction were, in fact, part of the same proceedings. As such, G was entitled to legal representation at the disciplinary hearing in accordance with Article 6 of the European Convention on Human Rights (ECHR) (right to a fair trial).

The Kulkarni Case
Dr. Kulkarni was accused of inappropriately examining a patient and taken to internal disciplinary proceedings. Dr. Kulkarni was represented by the Medical Protection Society. The Society asked if he could be legally represented. The Trust refused and stated that, in accordance with maintaining high professional standards in the modern MHPS (“MHPS”) (which it had incorporated into Dr. Kulkarni’s contract of employment) he was only entitled to be accompanied by a legally qualified person “not acting in a legal capacity”.

Dr. Kulkarni subsequently brought legal proceedings alleging that:

• the Trust had a discretion under his contract of employment to permit legal representation and the implied term of mutual trust and confidence required, in these circumstances, that discretion be exercised in favour of Dr. Kulkarni;
• the right to legal representation in these circumstances was a human right.

The High Court found that:

• it was lawful to refuse Dr. Kulkarni the opportunity to be legally represented at the disciplinary hearing. Given the terms of MHPS, there was no reason to imply a term into the contract permitting legal representation in these circumstances;
• there was no violation of Article 6 of the ECHR because Dr. Kulkarni would have had the right to legal representation if proceedings were pursued before the GMC or in the Employment Tribunal.

We understand that the Kulkarni case has been appealed to the Court of Appeal and we will provide a further update if the case comes to a hearing.

Practical Effect for NHS and Public Sector employers
In the NHS (subject to any appeals or further cases) there is room to argue that medical personnel should have full legal representation at internal hearings. This is despite the already widened entitlement under MHPS, particularly in capability hearings. The guidance (MHPS: Section I, paragraph 14) provides that the role is not "acting in a legal capacity". The distinction may be without a difference in many cases but, clearly, such a limit means that the representation is not formal legal representation. The NHS employer might consider allowing such representation. On occasions it may be seen as helpful, especially if the employer also wants to retain external representation. However, it is clear that despite Kulkarni, as it is currently decided, there are arguments for legal representation that may be raised, especially if the result will lead to POCA or POVA consequences. The G case will be used to support such arguments.

Public sector employers will need to address requests for legal representation and, certainly, where the disciplinary charges brought could have implications similar to those in the G Case.