In Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789 the Court of Appeal (Smith LJ giving the leading judgment) suggested that Article 6 rights to a fair trial and to legal representation will apply in disciplinary proceedings brought by a public sector employer, where the consequences of those proceedings are such that the employee will be effectively barred from practising his profession.

Key points:

  • The Court of Appeal decided this case on a point of contractual interpretation. It did however also make a number of non-binding comments on the applicability of the European Convention on Human Rights (the "Convention") to disciplinary proceedings.
  • The Court suggested that Article 6 will be engaged where an employee is faced with disciplinary proceedings by a public sector employer that threaten his or her employment with that employer if the employer is effectively the only employer with which the employee can practice their profession.
  • Further, the Court thought that such disciplinary proceedings would, under the principle that Article 6(1) conveys such rights as are commensurate to the severity of the proceedings, trigger such an employee's right to legal representation.

These comments are likely to be of interest to any public sector employer which enjoys an effective monopoly position in the employment market within a particular profession.

Background

The Milton Keynes NHS Trust (the "Trust") brought disciplinary proceedings against a trainee doctor against whom a complaint of inappropriate conduct towards a patient had been made. The doctor sought advice from a defence organisation of which he was a member, the Medical Protection Society, which requested permission to represent the doctor at the disciplinary hearing. The Trust refused to allow legal representation, as it believed its disciplinary procedures, as incorporated into the doctor's employment contract, did not permit such representation. The doctor brought proceedings claiming, among other things, that the Trust was acting unlawfully and in breach of contract in refusing him legal representation. At first instance, the High Court upheld the Trust's construction of the contract and ruled there was no infringement of Article 6.

Decision of Court of Appeal: a point of contractual construction

At the relevant time, all NHS doctors' employment contracts were subject to standard terms and conditions, which provided that it was for the employing authority to set its own disciplinary procedures as long as those procedures complied with a framework titled "Maintaining High Professional Standards in the Modern NHS" (the "MHPS framework"). Applying orthodox principles of contractual construction, the Court of Appeal found that the MHPS framework did entitle a doctor to legal representation by either a legally qualified person instructed by a defence organisation or by a colleague, friend, partner or spouse who is also a lawyer, although not by an independently instructed lawyer.

Which disciplinary proceedings engage Article 6?

The Court of Appeal then considered on an obiter basis the Claimant's alternative argument that, by denying or restricting his right to legal representation, the Trust had breached the Claimant's rights under Article 6.

The first question considered by the Court of Appeal was whether Article 6 applied to the present disciplinary proceedings. Article 6(1) applies, inter alia, to "the determination of civil rights and obligations", and where it applies, conveys the right to a fair and public hearing.

The Court of Appeal confirmed that disciplinary proceedings do not normally engage Article 6(1). However, the Court also considered previous case law of the European Court of Human Rights which held that Article 6(1) was engaged in those disciplinary proceedings that interfered with the right of a doctor to practise medicine (Le Compte v Belgium [1982] 4 EHRR).

The Court of Appeal stated that the distinction between disciplinary proceedings which do not and which do engage Article 6 is between disciplinary proceedings which could lead merely to the loss of a specific job (Article 6 would not be engaged), and more serious proceedings which could deprive the employee of a right to practice a profession (Article 6 would be engaged).

In the present case, the Court of Appeal noted that the NHS is effectively the sole employer of doctors in the UK, and is the only body that can employ a trainee doctor whilst they complete their training. Consequently, the Court held that Article 6 is engaged in any proceedings where the charges are of such gravity that, if proved, would result in an NHS doctor being effectively barred from employment in the NHS, as this would result in the doctor being effectively barred from practicing their profession in the UK.

Right to legal representation at disciplinary proceedings

The next issue was whether the Claimant had a right to legal representation. Essentially, legal representation is required by Article 6 either where the proceedings are criminal, in which case Article 6(3) expressly requires it, or where the proceedings are civil and the nature of the proceedings and their consequences is such that the Courts have implied a right to legal representation under Article 6(1).

Although the disciplinary proceedings in Kulkarni were civil proceedings, the Court of Appeal stated, obiter, that in this sort of case Article 6(1) should imply a right to legal representation since the Claimant was facing what was in effect a criminal charge, given the very serious consequences of a finding of guilt.

Comment

In Kulkarni, the Court of Appeal did not suggest that the express rights guaranteed by Article 6(3) applied. The same outcome was reached in a recent High Court case; R (on the application of G) v Governors of X School & Anor [2009] EWHC 504). In G, a teaching assistant was denied legal representation at a disciplinary hearing that led to his dismissal and a report being made to the Secretary of State which could potentially lead to the individual being barred from working with children again. The High Court held that the purpose of such proceedings was preventative and protective and as such they were properly characterised as civil proceedings.

The Court of Appeal recognised the difficulty for employers of distinguishing between cases where Article 6 applies, because of the potentially grave effect of an adverse finding. They suggested that where an employer receives a request from an employee that they be legally represented, they would be well advised to give it fair consideration, even if there is no contractual right to be legally represented, given the possibility that a denial of full rights of representation might be held to be a breach of Article 6.

This would mean that public sector employers must therefore consider whether a disciplinary finding against an employee would mean that the employee effectively cannot practice their profession - for example, because the employer is effectively the only employer in the UK with which the employee can practice their profession. If so, Kulkarni suggests that the established principle that Article 6(1) conveys rights commensurate to the seriousness of the proceedings means that such employees faced with disciplinary proceedings which effectively threaten their right to practice their profession are entitled to legal representation in those proceedings, irrespective of whether their employment contract entitles them to such representation. The decision is being appealed.