I am a HR manager working within a Department of the Civil Service. One of our junior employees has been accused of theft. He has been invited to a disciplinary hearing and wants to bring his solicitor. How do I handle it?


Patricia Rooney writes:


I suggest that you consider the employee’s contractual rights.


Does the right, to legal representation at disciplinary proceedings, exist in the employee’s contract of employment? If so, of course legal representation must be permitted to avoid allegations of breach of contract or possible unfair dismissal. It is rare for an employer to provide a contractual right which entitles an employee to have a lawyer present at internal employment proceedings. This is particularly so when the employee works in the private sector. There are however a few scenarios where public sector employees may enjoy such a contractual right. Accordingly, you should firstly ascertain whether this employee has that right.


Then, examine if the employee has a statutory right to be accompanied by his solicitor?


Article 12 of the Employment Relations (Northern Ireland) Order 1999 (the Order) provides that an employee may be accompanied at a disciplinary (and grievance) hearing by a companion of his choice, provided that companion is a fellow worker or employed by, or an official of, a trade union. The Order itself is silent as to the employee’s right to have a legal representative present throughout a disciplinary process and it has been suggested that if Parliament had wanted to permit such representation, provision could have been made here. Therefore, my advice is that under the Order an employee does not have the right to be accompanied by his solicitor at the disciplinary hearing.


But what of the employee’s civil rights?


Prior to recent case law on the issue of legal representation, it was commonly accepted that the provisions of the 1999 Order allow for the maximum protection afforded to an employee. The cases of:

1. Kulkarni –v- Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 798.
2. R (G) –v- Governors of ‘X’ School (Secretary of State for Children in Schools and Families Intervening) [2010] EWCA Civ 1.
3. Kirk –v- Middlesborough Council and Redcar & Cleveland Borough Council & Action for Children [2010] EWHC 1035(Admin).

have clarified the law, and on occasions extended an employee’s right to legal representation to an internal disciplinary process.

By way of background, the nature of the cases was an allegation by the employees that their human rights had been infringed due to their employers’ refusal to allow legal representation at an internal disciplinary process. The employees suggested that Article 6 of the European Convention on Human Rights (ECHR) required their employer to permit the employee to be accompanied by a legal representative.

Article 6 of the ECHR provides, amongst other things, that in the determination of civil rights and obligations, a person is entitled to a fair and public hearing within a reasonable time and has the right to defend himself in person or through legal assistance of his own choosing.

The ECHR has been incorporated into UK Law under the Human Rights Act 1998 which gives effect to the fundamental rights and freedoms in the ECHR which thereby apply directly to government and public bodies. This would be particularly relevant in your case working within the Civil Service. In the cases of Kulkarni and ‘X’ School, both employees were employed within the public sector. Mrs Kirk was employed by Action for Children, an independent charity which operated in the public sector arena.

Dr Kulkarni was employed by Milton Keynes Hospital NHS Foundation Trust as a Junior Doctor. The matter involved serious allegations against him which, if proven, would have likely led to his dismissal from the Trust but also, due to disclosure requirements, to the possibility that he would never be employed by the NHS. He had been refused legal representation at his disciplinary hearing and challenged that by way of judicial review proceedings against his employer.

The Court of Appeal ultimately held that he was contractually entitled to be represented at a disciplinary hearing by a lawyer instructed by the Medical Protection Society (see the decision in Northern Ireland of McCloskey J in Ali v Belfast Health & Social Care Trust 2008 NIQB 143).

It was however the Court’s obiter comments which suggest that under Article 6 there may be a free standing right where the allegations of misconduct against an employee are so serious that they will, in effect, be career ending and “deprive the employee of his right to practice his or her profession”. This was particularly so in the case of Dr Kulkarni where, if he had been dismissed by the Trust, he would have been effectively barred from employment in the NHS. The Court considered because the internal disciplinary proceedings themselves would have impacted on Kulkarni’s civil rights, namely his right to practice medicine as his chosen profession, his Article 6 rights would have been engaged in those particular circumstances.

In the Governors of ‘X’ School “G” was a teaching assistant and there were allegations against him of breach of trust arising from inappropriate sexual contact with a 15 year old boy. He suggested that the outcome of those disciplinary proceedings would have an impact on his future career in that if he was dismissed, he would be reported to the Secretary of State for Children’s Schools and Families and may be deemed permanently unsuitable to work with children. The court indicated that the disciplinary proceedings were determinant of G’s right to practice his profession.

By way of comparison, in Kirk, Mrs Kirk was a social worker employed by Action for Children (AFC). During her agency placement with Redcar and Cleveland Borough Council, a child protection complaint was made that she was allowing her former husband, a man she had previously accused of sexual abuse, into contact with her daughter, thereby placing her daughter at risk. Her agency placement was terminated and her employer, AFC instituted disciplinary proceedings due to her failure to disclose the complaint against her. Mrs Kirk sought a declaration from the Court that she would be entitled to legal representation at those disciplinary proceedings. It was submitted, as in Kulkarni and ‘X’ School that the outcome of the disciplinary proceedings would subsequently affect her ability to carry on her chosen profession as a social worker.

The High Court did not accept this submission. They were of the opinion that this was essentially a private law employment matter between Mrs Kirk and AFC. They also held that the question of a disciplinary hearing was not a preliminary act to the placing of Mrs Kirk’s name on a barring list such as would impact upon her ability to continue her professional as a social worker. Consequently, the proposed disciplinary proceedings by AFC involved Mrs Kirk’s employment rights only. As Mrs Kirk’s civil rights were not impacted, Article 6 rights were not engaged requiring the right to legal representation.

The Courts here also considered the issue in Re AB [2010] NIQB 19. The case concerned a leisure centre attendant who had been suspended following allegations that he had been responsible for offensive graffiti about his colleagues. The High court refused his application for legal representation at his disciplinary hearing. The Court was of the opinion that whilst dismissal would affect his future employment, it would not necessarily impact upon the employee’s civil right to practice in his chosen field.


Conclusion


It is clear from the recent Court decisions that legal representation at disciplinary hearings may have to be permitted for a civil servant as in this case, depending on the nature of the alleged offences against the employee, the gravity of the allegations and whether an adverse finding in relation to those allegations would be “career ending”.

In this case, whilst it concerns a public sector employee, you have indicated that he is a junior employee but have not given information as to his exact job, responsibilities etc. Subject to the nature of his role/job within the Department, if the outcome of the disciplinary proceedings would not impact upon his ability to continue in his career (even if dismissed), I would suggest you are not required to allow legal representation at disciplinary and appeal hearings. If, however, the disciplinary proceedings will affect the employee’s right to practice his chosen profession, you should consider allowing him to exercise his right to legal representation.