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Employees do not have a legal right to be accompanied by their lawyer at a disciplinary hearing

23 July 2012 | David Widdowson

The Court of Appeal has held that an employee did not have the right under the European Convention of Human Rights (ECHR) to legal representation during a disciplinary hearing which resulted in his dismissal.

Background

This case was an appeal by Dr Mattu, a consultant cardiologist, against a High Court decision to dismiss his claim that he was entitled to legal representation at an internal disciplinary hearing. The appeal considered whether, as a public sector employee, he was entitled to rely upon Article 6 (which provides for the right to a fair trial) of the ECHR and have legal representation at a disciplinary hearing that resulted in his dismissal from the NHS Trust.

The Court of Appeal disagreed with Dr Mattu. The Court of Appeal explained that an employer’s decision to dismiss its employee is derived from a contractual power and is not determined by a civil right as required by Article 6. An internal disciplinary process of this nature could not be equated with a civil trial and so no right to legal representation arose.

Commentary

Unless there is a contractual right to be accompanied by a lawyer (which is most unusual), both private and public sector employers can confidently refuse to allow an employee’s request that they be accompanied by their lawyer at a disciplinary hearing, even if the outcome of the disciplinary could damage the employee’s career.

The Court of Appeal commented that a court of law and the General Medical Council’s (GMC) panel (who determine if a doctor is fit to practice) make their own decisions separate from the employer’s decisions. The Court of Appeal suggested that, if an employee’s career might be in jeopardy dependent on the outcome of a hearing, the employee may be able to bring a claim under the ECHR against the professional body, or regulator, such as the GMC, who could effectively determine his future. This could mean more claims against organisations such as the FSA if they refuse to issue approved person status to a banker who has been dismissed for misconduct.

Resources

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust

For further information or to discuss the issues raised, please contact Emma Clark or David Widdowson on +44(0) 20 3051 5711.

Disclaimer

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The author

David Widdowson
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