Scottish Human Rights Law Group

2008 IRLR 949 (QBD)

 Article 6(1) ECHR

 Summary

 Right to legal representation at a disciplinary hearing.  Article 6(1) did not guarantee a right to legal representation to an employee (who was a junior doctor) at a disciplinary hearing when there was an express term in the employee’s contract of employment providing that there was no right to legal representation at disciplinary hearings.

Facts

 The Claimant was a junior doctor employment by Milton Keynes Hospital trust. A complaint was made by a patient that he had acted inappropriately. The Trust carried out an investigation and advised the Claimant that it intended to carry out a disciplinary hearing, and that under the applicable policies the Claimant would not be entitled to legal representation. The policy afforded a discretion to the Trust to allow legal representation. The Claimant (through his medico-legal advisor) made representations to the Trust to the effect that the circumstances were such that the Trust should allow the Claimant to be legally represented at the disciplinary hearing.

The Claimant sought and obtained an interim injunction preventing the holding of the disciplinary hearing. The case came before Mr Justice Penry-Davey on the Claimant’s application for the injunction to be extended.

 The Claimant argued inter alia that the Trust, as a public authority, was bound to act in a manner consistent with Article 6 ECHR and that the right to legal representation was a necessary requirement of a fair hearing under Article 6, in appropriate circumstances.

In response the Trust argued that that there was no right to legal representation in a civil case, and alternatively that if there was, the place where that right was engaged would be at the level of an appeal to the GMC or the Employment Tribunal and in any event if there is a right depending on the circumstances, this case was not one in which it should be permitted. Even assuming that Article 6 was engaged in the circumstances of this case at the level of the disciplinary hearing, it is clear that both the GMC and any employment tribunal will provide the guarantees of Article 6(1)

 Mr Justice Penry-Davey was not persuaded that Article 6(1) was engaged in the present circumstances, referring to Albert Le Compte v Belgium [1983] 5 EHRR 533,  but that in any event, even it were engaged,  the nature of the appeal process to the GMC and the subsequent rights to pursue a claim to the Employment Tribunal rendered the procedure as a whole compliant with Article 6.

This case is available to read in full here

Note

See also

 R (on the application of G) v Governors of X School and anor

 2009 EWHC 504 (Admin), where the High Court found that a right to be legally represented in a disciplinary procedure was required by Article 6 in the particular circumstances of that case.