In the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust, the Court of Appeal has held that in certain circumstances an individual may have the right to be legally represented at an internal disciplinary hearing.
Dr Kulkarni had been accused of sexual misconduct. The NHS Trust refused his request to be allowed legal representation at the disciplinary hearing. The High Court turned down his claim that this infringed his right to a fair trial under Article 6 of the European Convention of Human Rights (Article 6), holding that his human rights were adequately protected by his right to establish his innocence if the matter was referred to the General Medical Council and/or to bring a claim in the Employment Tribunal.
The Court of Appeal disagreed with the High Court. It held that it was an express term of Dr Kulkarni's contract of employment that he was entitled to be represented at internal disciplinary hearings by a legal representative retained or instructed by his medical defence union.
Although not required to do so, the Court of Appeal went on to consider whether a refusal to allow legal representation could amount to an infringement of Article 6. Article 6 does not generally apply to disciplinary hearings, but can in certain circumstances. The Court found it difficult to draw a firm line but suggested that Article 6 would only apply where a doctor faces charges so serious that he will effectively be barred from employment in the NHS if guilt is established. The Court went on to say that in a case such as Dr Kulkarni's, where the practitioner is facing what could amount to a criminal charge, Article 6 would require the employer to permit legal representation at the disciplinary hearing.
This is consistent with the decision of the High Court in the case of R (on the application of G) v the Governors of X School, where the serious nature of the misconduct allegations against a teacher meant that they were entitled to legal representation.
Impact on Employers
- In this case, the clause in the NHS policy relating to representation at disciplinary meetings was not clearly drafted, hence the differing interpretations by the High Court and Court of Appeal.
- Many doctors and dentists employed in the NHS are contractually entitled to representation by a lawyer instructed or retained by their medical defence union.
- Other employees in the public sector facing disciplinary charges with serious consequences if there is a finding of guilt may be able to rely on Article 6 to insist on legal representation where they face a threat to their ability to practice their profession, as opposed to the loss of a specific job.
- Article 6 does not apply directly to private sector employers but private sector employers should ensure that their disciplinary procedures deal clearly with the right to legal representation.
- Even where policies expressly and unambiguously exclude legal representation at disciplinary hearings, employees in the private sector may still request it if the circumstances are sufficiently serious, for example where an employee could face criminal charges or be struck off by their professional body as a result of their alleged misconduct. Provided there is an express term excluding the right to legal representation, an employer will be within its rights to refuse, but must first give fair consideration to any request.