The normal rule is that an employee is entitled to be accompanied at a disciplinary hearing by a colleague or trade union official but not by a lawyer. In March 2009 the High Court made an exception. It held that if the substance of the matter could lead to the employee’s name being added to the Protection of Children Act register of people deemed unsuitable to work with children then the right of the employee to a fair trial under the Human Rights Act can give him or her the right to be represented by a lawyer at the disciplinary hearing.
In the case in question disciplinary proceedings were started against a young part-time music assistant at X School as a result of alleged acts of abuse of trust with a 15 year old male pupil. After an internal disciplinary hearing in February 2008 he was dismissed and told that he would be reported to the appropriate authorities for possible inclusion in the POCA register of people deemed unsuitable to work with children. He appealed to the school’s staff appeal committee and asked to be allowed to have legal representation. Permission for this was refused. The staff appeal proceedings were then stayed while he applied to the High Court for judicial review of the refusal.
The High Court found in his favour. The judge said that in this case
“the gravity of the particular allegations made against the Claimant ……. taken together with the very serious impact upon the Claimant’s future working life …… are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee”.
The school appealed to the Court of Appeal but has lost (G, R (on the application of) v X School & Ors, Court of Appeal on 20th January 2010).
Agreeing with the High Court the Court of Appeal has ruled that the right to a fair trial provided by the Human Rights Act means that a claimant must be given the opportunity to be legally represented at a disciplinary/appeal hearing when that hearing is determinative of his civil right to practise a profession. This confirms a similar decision in a 2009 case involving a doctor who had been refused permission to be represented by lawyers at a disciplinary hearing (Kulkarni v Milton Keynes Hospital NHS Foundation Trust).
So while the general rule remains that an employee is not normally entitled to be represented by a lawyer at a disciplinary hearing, it is now clear that this is not an absolute rule. If the allegations are sufficiently serious and if an adverse finding could have a serious effect on the employee’s future employment prospects then legal representation should be allowed in spite of the general rule.