Summary and implications

In Kulkarni v Milton Keynes Hospital NHS Foundation Trust, the Court of Appeal recently held that a trainee doctor was contractually entitled to be legally represented during a disciplinary hearing. Although this decision is unlikely to open the floodgates to requests from employees for legal representation, employers, especially in the public sector, need to be aware of the following implications:

  • NHS employees facing serious disciplinary charges on grounds of misconduct or capability have a contractual right to be legally represented at disciplinary hearings;
  • Other employees (both in the public and private sectors) may be entitled to legal representation at a disciplinary hearing where the outcome could lead to them being deprived of their rights to practice their profession; and
  • An employer's refusal to allow legal representation could breach article 6 of the European Convention on Human Rights (ECHR).

The Facts

Dr Kulkarni was a Year One doctor, employed by Milton Keynes Hospital NHS Foundation Trust ("the Trust"). Shortly after starting work for the Trust in July 2007, Dr Kulkarni was suspended following a serious complaint made by a female patient.

As a member of the Medical Protection Society ("MPS"), Dr Kulkarni was assigned a representative to assist him during the disciplinary process. As this member of the MPS was not legally qualified, the Trust was asked whether Dr Kulkarni could have legal representation at his disciplinary hearing. The Trust refused this request on the basis that its procedures did not allow for legal representation and anyone accompanying Dr Kulkarni "must not be acting in a legal capacity".

Challenge in the High Court

Dr Kulkarni challenged this decision in the High Court on the basis that:

a) the Trust should have exercised its discretion to allow legal representation under either an express or implied term in his contract of employment; and What does Article 6 ECHR say?

b) this refusal breached his rights under Article 6 of the ECHR, which the Trust had to comply with as a public sector employer.

The High Court held that there was an express provision in Dr Kulkarni's employment contract prohibiting legal representation at disciplinary hearings. There could therefore be no implied term providing a discretionary right. Even if there were an implied term, the High Court held that the Trust's refusal to exercise this discretion was reasonable, due to the absence of exceptional circumstances.

In relation to Article 6, the High Court held that even if this Article was engaged, any proceedings before the General Medical Council and Employment Tribunal would mean the proceedings as a whole were compliant with the provisions of the ECHR.

Dr Kulkarni appealed to the Court of Appeal.

What does Article 6 ECHR say?

Article 6(1) – Everyone is entitled to a "fair and public hearing" in relation to the determination of civil rights or obligations or criminal charges.

Article 6(3) – Anyone charged with a criminal offence has the right to legal representation and to cross-examine witnesses.

Decision by the Court of Appeal

The Court of Appeal examined the terms of Dr Kulkarni's contract of employment in relation to representation at disciplinary hearings and decided that they had to be construed objectively.

The Court held that under Dr Kulkarni's contract of employment he had the right to be represented by a legally qualified person, employed by or instructed by the MPS. However, he could not bring an independently instructed legally qualified person to a disciplinary hearing, unless that person was a spouse, partner, colleague or friend (as permitted under his contract of employment).

This decision meant that it was not necessary to consider the issue under Article 6 ECHR. However, the Court did go on to examine this Article and made the following observations:

  • there is a distinction between ordinary proceedings, where all that is at stake is the loss of a specific job, and proceedings which could result in an employee being deprived of his right to practice his profession. Where this latter situation arises, Article 6 would be engaged.
  • Dr Kulkarni was, in effect, facing a criminal charge, albeit through disciplinary proceedings. Although the consequences of being found guilty would not be imprisonment, they could still be potentially very serious. In these circumstances, there is an implied right to legal representation in civil proceedings.
  • Even where a contract of employment contains an express provision prohibiting legal representation at disciplinary hearings, this does not prevent an employer waiving this provision where the circumstances justify it.

Although these comments are not legally binding, they are useful in understanding the approach the Courts may take in future cases.

Does an employee have the right to be legally represented at disciplinary hearings?

The Court of Appeal's decision does not give employees an automatic right to legal representation during disciplinary hearings. The Court was very clear that if an employee is dismissed but is not prevented from getting employment in a similar role, there is no right to legal representation at disciplinary hearings.

However, where an employee risks being denied the right to continue his profession if found guilty of the charge against him, the Court of Appeal indicated that employees in the public sector had a right to legal representation under Article 6 ECHR.

How does this decision affect the private sector?

Employers will often have discretion to allow legal representation at disciplinary hearings, unless their disciplinary policy contains express terms to the contrary. Even where there is an express provision, there is nothing to prevent an employer from waiving this provision if the circumstances justify it. Where a request for legal representation is made, the Court of Appeal stated that "an employer who receives such a request would be well advised to give it fair consideration and…bear in mind the possibility that a denial of full rights of representation might be held to be a breach of Article 6".

As public bodies, Employment Tribunals have an obligation under the Human Rights Act 1998 to ensure that their decisions comply with the provisions of the ECHR. This means that where a private sector employer has refused legal representation to an employee facing serious charges, which could exclude him from practicing his profession, the Tribunal has to construe its decision in line with the provisions of Article 6. On this basis, a Tribunal may hold a decision to dismiss an employee to be unfair where a request to be legally represented at a disciplinary hearing has been refused in circumstances which would justify such representation.

The lesson to be learned from this decision is not to dismiss an employee's request for legal representation out of hand. Any such request should be considered fairly and rationally and, if in doubt, legal advice should be sought before any request is refused.