The High Court has upheld an employer's express term preventing legal representation at an internal disciplinary hearing. The implied term of trust and confidence cannot be used to overrule such an express term in the circumstances and refusal to allow legal representation does not amount to a breach of the employee's human rights.
In the case of Kulkarni v Milton Keynes Hospital NHS Trust, following allegations by a patient that Mr Kulkarni had examined her inappropriately, the Trust suspended Mr Kulkarni and commenced disciplinary proceedings.
The Trust's disciplinary policy expressly excluded anyone acting in a legal capacity from accompanying an employee to a disciplinary hearing. Mr Kulkarni demanded the right to be accompanied by a legal representative during his disciplinary proceedings, as his entire professional career potentially rested on the outcome. The Trust declined to allow legal representation and the High Court has upheld the Trust's express term. The express term did not breach the rules of natural justice and allowed no scope to imply a term that the employee could be allowed legal representation. The Court also considered that Article 6 of the European Convention on Human Rights (the right to a fair trial) did not require employees to be allowed legal representation at internal disciplinary hearings.
Impact upon employers
This case endorses the approach of employers who do not wish to allow legal representation at internal hearings. Employers should consider amending their disciplinary policies to make it an express term that legal representation will not be allowed, if their policies do not already say so. Employers should however remain alive to the need to take into account individual circumstances when applying their disciplinary policies, in particular when dealing with employees who may be disabled for the purposes of the Disability Discrimination Act and for whom it may be necessary to make reasonable adjustments.