The European Convention on Human Rights provisions on legal representation at internal hearings will only be engaged where the outcome of the proceedings will have a substantial effect on an employee's right to practise their profession. Damage to professional reputation alone will not be sufficient. It was also held that the disciplinary panel need not comprise outside members in order to be independent and impartial.
The Claimant, an NHS surgeon, was required to attend a disciplinary hearing following allegations of misconduct, specifically that he had been rude and abusive to fellow staff. The Claimant relied on Article 6 of ECHR on the basis that the hearing could result in his dismissal and damage his professional reputation. He further argued that the disciplinary panel and proposed appeal panel were not independent and impartial so as to comply with Article 6 because they were predominantly made up of members of the NHS Trust (only one of the three disciplinary panel members was from outside the Trust) which he argued would inevitably lead to bias in favour of the Trust.
The High Court disagreed. There is no general right to reputation and this is not a case in which the effect of the disciplinary proceedings might be to deprive the Claimant of the right to practise his profession. If upheld, the allegations would not themselves prevent him from getting a job elsewhere. Further, even if Article 6 had been engaged, the court stated that it would not have held that the disciplinary panels needed to comprise people external to the Trust in order to comply with the requirement to be independent and impartial.
What this means for employers
The decision in this case is not surprising and follows a number of other recent cases regarding the right to a fair hearing in the context of disciplinary proceedings. Although these cases relate to public sector workers, there are clear parallels between the reasoning in these cases and allegations of serious regulatory breaches in the private sector.
The High Court's comments that the disciplinary panel need not comprise outside members in order to be independent and impartial may give some comfort to employers, particularly small organisations, who find it difficult to identify senior individuals within the organisation to hear a disciplinary or appeal who are genuinely independent/impartial and not aware of the facts surrounding the proceedings.
R (Puri) v Bradford Teaching Hospitals NHS Foundation Trust  EWHC 970