You may remember that there have been some recent cases where Article 6 of the European Convention on Human Rights has been used to successfully argue that they are entitled to be legally represented at an internal disciplinary procedure. In very general terms it was held in these cases that legal representation was necessary if the outcome of the hearing could mean that the employee would be unable to work again in their chosen profession.
Article 6 has been used again in a recent case, Hameed v Central Manchester University Hospitals NHS Foundation Trust, where an NHS employee argued that the panel who heard her disciplinary hearing was not sufficiently independent and her employer had therefore breached Article 6 of the European Convention on Human Rights (ECHR), which is the right to a fair hearing. The High Court considered that Article 6 was not relevant in this situation because it did not follow that she would be unable to secure another job within her chosen field as a result of the disciplinary action.
This judgment is, in particular, relevant to the public sector because the ECHR applies with direct effect on such employees. The key distinction between the Hameed case and that of Kulkarni (in which case the employee was entitled to rights under Article 6 in relation to termination of employment) was that Dr Hameed was a qualified doctor with lots of practising experience and references to draw on whereas Kulkarni was a trainee doctor without practising experience. In effect Dr Hameed’s career was not ended by the disciplinary action whereas Dr Kulkarni’s effectively was.
Public sector employers therefore need to consider the effect of the disciplinary action on the specific individual when deciding whether the process to be followed should be amended in light of Article 6.