Bring a lawyer

G, a teacher, had his name placed on the statutory register of persons prohibited from teaching or working with children known as 'List 99' '“ as per section 142 of the Education Act 2002 '“ after he was found guilty of sexual impropriety. Ahead of the proceedings that lead to this decision, G had asked the school for permission to be represented by a lawyer at the disciplinary hearing. The request was refused and the hearing went ahead, resulting in a finding that the sexual impropriety had occurred. G was also dismissed.

The High Court held that G should have been permitted legal representation. This decision was confirmed on appeal in G v X and Y [2010] EWCA Civ 1 (see Solicitors Journal 154/3, 26 January 2010). The Court of Appeal had earlier considered a similar situation in Kulkarni v Milton Keynes NHS Trust [2009] EWCA Civ 789 (see solicitorsjournal.com, 28 July 2009) '“ which concerned a doctor accused of professional misconduct '“ and had held that doctors employed by NHS trusts have a separate contractual right to legal representation at disciplinary hearings under the terms of the national MHPS procedure. Further obiter comments were made about the article 6 issue, which were later quoted with approval in G v X and Y.

A fair hearing

Article 6 confers a right to a fair trial in respect of the determination of both 'civil rights and obligations' and of 'any criminal charge'. Article 6(1) sets out procedural safeguards that are applicable in both the civil and criminal arenas and confers a right to 'a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly'¦'.

The concept of a 'fair hearing' imports the right, if the person whose rights are to be determined so wishes, to be legally represented by a lawyer chosen by him.

So far it had been thought that article 6 had no application in internal disciplinary procedures potentially resulting in dismissal because the right to issue claims in the employment tribunal of unfair dismissal, discrimination, victimisation or breach of contract satisfies all the article 6 procedural safeguards, including the right to a fair hearing. Convention rights are generally only directly enforceable against the state unless imported into domestic legislation. For this reason, the case law on the issue deals with public sector employers in their capacity as 'emanations of the state'.

The Court of Appeal decisions establish that article 6 is engaged in circumstances where a public sector employer convenes an internal disciplinary procedure that is required to consider allegations of misconduct that are either identical to a criminal charge or, if upheld, are likely to result in the removal of the employee's right to pursue his career or livelihood.

In both these circumstances, an employee is entitled to request the right to be legally represented at the disciplinary hearing. The argument that article 6 would be satisfied by a subsequent 'fair hearing' before the tribunal is no longer sustainable. An employment tribunal has no power to formally set aside a finding of fact made by the employer and may, where the jurisdiction permits, only make a declaration of the rights between the parties in relation to the act to which the complaint relates.

The onus of requesting legal representation is on the employee, as does the cost of such representation.

When an employer convenes a disciplinary hearing that requires consideration of 'article 6 material', declines a request for representation and then dismisses, two further issues may arise: whether the dismissal is automatically unfair, and how the employee should respond.

Automatically unfair dismissal?

Section 98(4) of the Employment Rights Act 1996 sets out no procedural requirements for a fair dismissal, and focuses exclusively on the reason for the dismissal.

The ACAS Code of Practice on Disciplinary and Grievance Procedures was issued in 2009 for the purposes of 'promoting the improvement of industrial relations', and makes no reference to the need to comply with any over-arching system of procedural fairness.

An unreasonable failure to comply with the Code of Practice may be penalised only by adjusting any award payable, so that it is clear that the procedure used to effect the dismissal will not, of itself, determine whether or not the dismissal was fair or unfair. In short, a breach of article 6 will not lead, of itself, to a finding of unfair dismissal.

Employee's response to a decision

An employee may issue judicial review proceedings to quash the disciplinary decision of the employer and require it to reconsider the request for representation. The effect of obtaining such an order after dismissal will be to reinstate the employment contract, leading to an additional liability for salary.

The requirement to provide an effective remedy suggests that an employer may also be liable to pay additional compensation proportionate to the gravity of the breach and the loss it occasioned.