An employer does not need to comply with the procedural requirements of Article 6 of the Human Rights Convention when dismissing a member of staff, according to the Court of Appeal in last month’s decision involving the dismissal of an NHS doctor. There have been uncertainties about this issue for some time. This Court of Appeal judgment gives the most definitive answer so far, although an appeal to the Supreme Court remains a possibility.
The worries for employers (particularly in the public sector) started with comments made by the Court of Appeal in Kulkarni three years ago. That was another case involving misconduct by an NHS doctor, although that time the main issue was whether he was entitled to legal representation at an internal disciplinary hearing. In the end the Court of Appeal decided that the doctor was contractually entitled to legal representation. It therefore did not need to consider the human rights angle, but it made comments suggesting that in a situation where an employee’s ability to practice his or her profession was at stake, an employer might need to comply with the procedural safeguards set out in Article 6 of the Convention.
Kulkarni was followed by G v Governors of X School , a decision of the Supreme Court from last year, which again addressed the issue of legal representation. This time it involved a music teacher accused of sexual misconduct and facing internal disciplinary proceedings. The Supreme Court said that an employer would need to comply with Article 6 if the outcome of the disciplinary hearing would have a substantial influence on the outcome proceedings before the relevant professional conduct body. However in this case the Supreme Court judges were satisfied that the Independent Safeguarding Authority, the body charged with deciding whether G could continue to work in schools, would make up its own mind about the facts of the case, and would not be overly influenced by the findings of the School’s disciplinary panel.
Although the employee’s arguments in G were unsuccessful, many employers feared that the Supreme Court’s decision left the door open for similar arguments to succeed in the future. That was a worry because Article 6 imposes a number of requirements which are not normally satisfied in internal disciplinary proceedings. These include the right to legal representation, and a requirement that the panel making the final decision to dismiss is independent of the employer.
The significance of this latest decision from the Court of Appeal is that it adopts a more robust approach to this issue. It comes close to saying that the Human Rights Act is pretty much never relevant to internal disciplinary proceedings, though of course there are many other considerations which will drive employers to make sure that such proceedings are conducted as fairly as possible.