Employment Update September 2009: Disciplinary proceedings

28 September 2009

Do employees have the right to be accompanied by a lawyer?

The recent case of Kulkarni v Milton Keynes Hospital NHS Trust addressed a problem that arose because of the wording of an NHS doctor’s contract but it also has more general implications for all employers.

The employer in this case refused to allow the employee doctor’s legal representative to accompany him to a disciplinary hearing, which had been called after it had been alleged that he had assaulted a patient.

The contract said that the employee could be accompanied but with the following condition: 'the companion may be legally qualified but he or she will not be acting in a legal capacity'.

The Court of Appeal decided that this particular phrase was 'devoid of meaning' so the doctor was entitled to be legally represented by virtue of the contractual wording.

It went on to say that, even if the contract had banned legal representation, in the circumstances of the case, Article 6 of the European Convention on Human Rights applied - individuals are entitled to legal representation where their civil rights are at stake.

Where the disciplinary proceedings might lead to dismissal for misconduct as a result of which the employee (as in this case) would be effectively prevented from practising his profession again, he or she was entitled to legal representation at the disciplinary hearing, whatever is said in the contract.

This is not pre-empting the function of an employment tribunal which only has to decide on the fairness of any dismissal (within the range of reasonable responses) not on whether the actual or alleged misconduct actually occurred.

Points to note -

  • All employees, when required to attend a disciplinary or grievance hearing, and if they make a reasonable request to be accompanied, have a statutory right, under section 10 of the Employment Relations Act 1999, to be accompanied either by a fellow-employee or by an official or employee of a trade union. All employers should make sure that the wording of their disciplinary policies reflects this.

  • There is no statutory right to be accompanied by a lawyer but employees whose professional status may be at stake may rely on this decision of the Court of Appeal to ask for legal representation at a disciplinary hearing. We shall be happy to advise further as to how such a request should be managed.