Scottish Human Rights Law Group

Article 6(1) ECHR

Summary

Right to legal representation at a disciplinary hearing. Article 6(1) could in some circumstances guarantee a right to legal representation to an employee facing particularly serious consequences following disciplinary proceedings.

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. At first instance 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.

The claimant Appealed. Having considered the question of the correct construction of the contractual disciplinary policies in place between the claimant and the Trust, Lady Justice Smith concluded that, in this case, the claimant had a contractual entitlement to be legally represented at the hearing by a solicitor instructed by his professional body.


Lady Justice Smith went on to offer a view on the arguments advanced on the basis of Article 6(1) ECHR, and departed from the line taken by Mr Justice Penry-Davey.

She considered that the claimant faced charges of sufficient gravity that if proved, he would in effect be barred from employment anywhere within the NHS. She took the view that Article 6(1) did require a right to legal representation to be provided in this case where the claimant was facing charges which in effect amounted to criminal charges, albeit they were being decided in the context of a disciplinary hearing. She also rejected the argument that the existence of possible proceedings before the GMC was sufficient to render the proceedings as a whole compliant with Article 6(1). She noted that the GMC is not a judicial body, it does not hear appeals from the disciplinary hearing, and the claimant cannot instigate proceedings. They are instigated by the GMC itself.

The existence of a right to present a complaint to the Tribunal was also not enough to cure any lack of fairness in the disciplinary hearings. The Tribunal’s task was not to assess whether the claimant was guilty of the alleged misconduct, but simply to assess whether in law the dismissal was fair, having regard to the test in British Home Stores v Burchell. . The Tribunal was not able to determine what was the crucial question of fact for the claimant, and it was not therefore a tribunal of full jurisdiction for the purposes of assessing the overall compliance of the proceedings with Article 6(1).

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.

This appeal is available to read in full here