DO DOCTORS or dentists have the right to legal representation at internal disciplinary hearings such as those conducted by trusts or health boards?
Historically, the right to be accompanied was limited to the statutory right to have a colleague or trade union representative present. But the courts have recently had to consider two cases in which employees have sought to assert a right to legal representation at such hearings.
In one of the cases (R v The Governors of X School) a teacher argued that an article of the European Convention on Human Rights (ECHR) established his right to legal representation at a disciplinary hearing where he was accused of having an inappropriate relationship with a pupil.
Article 6 of the ECHR sets out the right to a fair trial and states that everyone is entitled to a "fair and public hearing" in relation to the determination of civil rights or obligations or criminal charges. The right to a fair trial also includes the right to have legal representation and to crossexamine witnesses in the event of criminal proceedings.
UK legislation must be interpreted in a way that is compatible with the Convention. In addition the ECHR is directly applicable to public bodies. The High Court determined that although the proceedings in question were civil proceedings, the gravity of the case meant that the employee was entitled to legal representation in order to ensure that he was accorded a fair hearing.
In another case (Kulkarni v Milton Keynes Hospital NHS Foundation Trust ) a doctor was accused of inappropriately examining a patient. His contract stated that conduct issues were to be dealt with under the employer's disciplinary procedures, which were themselves to be consistent with the Maintaining High Professional Standards in the Modern NHS (MHPS) framework.
The Court of Appeal held that MHPS framework gave the doctor a contractual right to be represented at an internal hearing by a lawyer instructed by his defence organisation. This case turned on the wording of the contract, and the judges ruled that, if an employee is facing such a serious charge that they could be barred from practising, then Article 6 implies a right to legal representation.
Another relevant factor to be considered is the new ACAS code and guidance launched in April 2009. It replaces the statutory dispute procedures as the framework governing the way employers should manage disciplinary matters in the workplace. Natural justice is a concept to be found at the heart of the new employment regime and also most common law jurisdictions. It is based upon the premise in Roman law that certain basic legal principles are required by nature and should be applied universally. Natural justice incorporates the concept of procedural fairness and the right to a fair hearing.
The ACAS code places particular emphasis on the requirement for fairness, stating that employers should:
● deal with matters promptly
● act consistently
● inform the employee of the basis of the problem
● allow the employee to state his case
● allow employees to be accompanied at formal hearings
● allow a right of appeal.
The right to be accompanied is not of itself seen as a pillar of natural justice but it has come to be accepted as one facet of a fair hearing and the ACAS code identifies this as one of the core principles of reasonable behaviour.
Just because employees may have a right to legal representation in certain circumstances should they exercise that right?
A lawyer can cross-examine witnesses and highlight procedural errors but unless the employer is going to allow a quasijudicial hearing then this is not necessarily going to make a difference overall. Many of the perceived advantages of having a lawyer present at the hearing may be achieved by instructing a lawyer to advise from the wings.
The cases where lawyers are likely to be able to provide a real impact in attendance at internal hearings would, in the writer's view, be where there is no black and white in terms of the correct outcome. A senior QC once commented to his instructing solicitor that arguing his case was "like knitting with fine threads". The solicitor had to agree that the case for the defence was indeed a little thin on the ground but the QC went on to successfully defend that case drawing on all the persuasive powers for which he was renowned.
Although lawyers clearly have a part to play in the resolution of employment disputes it will not always be the case that legal representation at the internal disciplinary hearing is the most constructive use of this resource. Doctors or dentists would be well advised to think carefully, in conjunction with MDDUS, about whether bringing a lawyer to an internal hearing is the best course of action.
Charlotte Johns is a solicitor with Shepherd and Wedderburn LLP
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