The Court of Appeal has recently handed down a judgment in which it held that Article 6 of the European Convention of Human Rights (“the ECHR”) and its implications as regards fair hearings did not apply to a dismissal procedure. The decision means that ECHR does not require education institutions to constitute Article 6 compliant panels or to adopt procedures likely to include the right to legal representation before dismissing an employee. In the absence of contractual commitment to do so, therefore, many employers will find themselves relieved of the burden of such procedures.
All public bodies must act in a way which is compatible with rights contained in the ECHR. Article 6 of the ECHR provides, in respect of civil matters, that, "everyone is entitled to a fair and public hearing..", though there is no express right to legal representation.
Kulkarni v Milton Keynes Hospital NHS Foundation Trust suggested that employees of public sector organisations, including education institutions, should be allowed legal representation in disciplinary proceedings if they are facing allegations which, if proven, could result in them losing the right to practise their chosen profession. This meant that, where the consequences of dismissal went beyond simply losing a job and might exclude the individual from working in their profession, employers needed to proceed with caution where legal representation was requested. However, in R (on application of G) v Governors of X School (a case involving dismissal of a teaching assistant following allegations of sexual impropriety), the effect of the Supreme Court’s ruling was to reduce that pressure on employers. The Court found that employees subject to approval by the Independent Safeguarding Authority (ISA), such as teachers, were no longer able to argue they were entitled to legal representation at internal disciplinary proceedings merely because of the potential for the ISA to be influenced by the outcome of those proceedings. It held that the ISA was able to reach its own, independent conclusions as to his suitability to work with children. Article 6(1) would only be engaged in disciplinary hearings, therefore, when the outcome would have "a substantial influence or effect" on the subsequent determination of the employee's civil rights, in this case the decision of the ISA as to whether to bar G from working with children.
The facts in Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust
Dr. Mattu worked for the Trust as a consultant and was contracted to carry out both clinical services and research. He was suspended by the Trust in 2002 for disciplinary reasons. At his disciplinary hearing, which took place five years later, Dr Mattu was not dismissed and, given his lengthy period out of work, re-skilling was arranged. However, Dr. Mattu wanted academic, as well as clinical re-skilling and refused to sign the Trust’s Action Plan. This resulted in further disciplinary action being taken against him as, rather than meeting or writing to the appropriate person, he wrote lengthy letters of complaint, the tone of which were considered “patronising, condescending and disrespectful” to those assisting with the re-integration process, including the Chief Executive and Chairman of the Trust. He also lodged a series of grievances.
Three fresh disciplinary allegations were made against Dr Mattu: his refusal to comply with the reasonable requirements of the Trust in signing up to the Action Plan and failing to co-operate with the re-skilling process, refusing to accept or comply with reasonable instructions and acting in such a way as to render himself unmanageable.
After six adjournments, the disciplinary hearing was held in Dr. Mattu’s absence after his seventh adjournment request was refused. The panel considering the allegations against him included the Trust’s Chief Executive, but not an independent medically qualified personas contractually required where professional misconduct is alleged. The panel found that Dr. Mattu was guilty of gross misconduct and that he should be dismissed without notice. His dismissal was upheld on appeal.
Dr. Mattu issued proceedings in the High Court. He complained that the Trust’s Chief Executive was not entitled to dismiss him, either under the contract or in light of Article 6 ECHR. His claim was dismissed, and he appealed to the Court of Appeal.
Court of Appeal decision
The Court held that:
- the allegation that he refused to comply with the Trust’s reasonable requirements did not amount to an allegation of “professional misconduct” and consequently the decision to dismiss him was lawful. The allegation ‘did not involve any medical skill or expertise for its resolution and was simply a managerial issue’;
- the decision not to adjourn the disciplinary hearing for a seventh time did not render the dismissal unfair in circumstances where it was appropriate for the matter to be determined expeditiously;
- a decision by an employer whether to dismiss an employee under a contract of employment does not engage Article 6; and
- significantly in the context of the right to a fair hearing, the Court found that the decision whether or not to dismiss an employee does not determine the employee’s civil rights but a contractual right as acknowledged in R (G) v. Governors of X School. Remarks in Kulkarni to the effect that the application of Article 6 depends on whether a doctor or other professional can in fact obtain work in his field as a result of his dismissal, were specifically disapproved. In Dr. Mattu’s case, it was relevant that the Trust’s disciplinary proceedings did not influence the outcome of the General Medical Council’s proceedings; an employment tribunal hearing an unfair dismissal claim could still consider the issue of fairness; and a Court hearing a wrongful dismissal case could still determine whether or not the misconduct had occurred.
Although it is possible that the Court of Appeal’s decision won’t be the end of the matter, education institutions can take some comfort at the practical implications of this decision. The only possible route for a claimant alleging that Article 6 applies and insisting upon legal representation would now appear to be that the proceedings are likely to have a ‘substantial influence or effect’ on subsequent action taken by a relevant regulator. If the regulator is charged with carrying out its own investigation into the facts, independently of any decision reached by the employer, it is unlikely an employee will be entitled to bring a legal representative to the employer’s disciplinary proceedings. If, on the other hand, the regulator relies on the employer’s conclusions as to what happened in a particular case, the employee could have a stronger case for insisting on legal representation. This test is likely to be satisfied only in the most exceptional cases. Therefore, unless there is a residual contractual right to legal representation, it is now safe to assume that it is not an entitlement.