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Right to legal representation in disciplinary meetings for professionals.

31st January 2010

The Court of Appeal has recently given a ruling that indicates that an individual should have the chance to be legally represented at a disciplinary or appeal hearing where their right to continue practising in their profession may be in question.

It is important to note that this does NOT extend to all individuals in all jobs. The court ruling in this case (G v X School) concerned a teaching assistant, about whom an allegation had been made that he had had sexual contact with a 15 year old boy. Mr G was not allowed legal representation in either the disciplinary or he subsequent appeal hearings. The School governors took the decision at the disciplinary hearing to terminate his employment and to report him to the Independent Safeguarding Authority (ISA), so that it could decide if he should be placed on the “barred” list- a list which includes the details of those people that have been deemed unsuitable for working with children.

Mr G commenced a judicial review, challenging the decision of the school governors not to allow him legal representation at the disciplinary or the appeal hearings. The Court of Appeal concluded that the right to practise a profession was a “civil right or obligation”, that the ISA listing would fundamentally limit Mr G’s ability to practise his profession, and that the schools internal process would have a “substantial influence or effect” on the decision reached by the ISA. The Court concluded that the European Convention on Human Rights (which has largely been given legal effect in the UK through the Human Rights Act) required and entitled Mr G in these circumstances to be legal representation at the disciplinary and appeals hearings.

This decision followed and adopted the reasoning of the Court of Appeal in an earlier case, Kulkarni v Milton Keynes Hospital NHS Trust. That case concerned a doctor that faced the possibility of being prevented from future practise as a doctor as a result of disciplinary action by the Hospital. He had not been allowed formal legal representation in the disciplinary meeting, and had succeeded in his legal challenge over the denial of the chance to be formally legally represented.

Clearly the logic in these cases would apply equally to a range of professions:- accountants, college and university lecturers, dentists, doctors, nurses, solicitors, and teachers. The decisions do show that the professions have a special status in the conduct of disciplinary and appeal hearings, and do not extend to other workers. Employers should always have written disciplinary procedures, which provide for a fair process and appeal, but for the vast majority of the workforce the standard right to be accompanied in a disciplinary or appeal hearing extends to current work colleagues and Trade Union representatives.

If you need any further advice and help on the issues raised in this article please do not hesitate to contact us.

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