This was the conclusion of the court in the case of Kulkarni v Milton Keynes NHS Trust which can be viewed here.

Dr Kulkarni (K) was suspended from work and referred to a disciplinary hearing after being accused of inappropriately examining a patient. The trust's policy on disciplinary hearings clearly stated that while K was entitled to be accompanied at the hearing by a colleague or union representative (in line with statutory requirements), he was not allowed to have his lawyer present. K applied for an injunction on grounds including breach of contract. K argued that it was part of the implied term of mutual trust and confidence that his lawyer could accompany him and also that the trust’s refusal was in breach of both natural justice and the right to a fair hearing (Article 6 ECHR) which can be viewed here.

The court was quick to dismiss K's rights to legal representation at the disciplinary level. This is in spite of the quasi criminal nature of the matters alleged against K. The judge found that there was neither a breach of natural justice nor a breach of Article 6 holding that where there is recourse to a further review by a judicial body, it is doubtful that Article 6 is engaged at the disciplinary level.

It is clear that the existence of an express contractual policy assisted the employer's defence because the express term could not be superseded; employers are therefore well advised to include such a term. Without this, it is possible that the implied term of mutual trust and confidence may have prevailed.