There is an interesting employment law case which has obtained a great deal of interest in the human resources and legal press.
Public sector employees may have the right to bring a lawyer to all disciplinary hearings should their dismissal prevent them from working in their profession in future.
A Court of Appeal decision published last week has opened up the issue as to whether employees have the right to legal representation at internal disciplinary hearings.
The case involved a music assistant at a primary school, who was dismissed by a disciplinary committee following a complaint that he had kissed and had sexual contact with a 15-year-old boy, who was a work experience student at the school.
Prior to his dismissal, the claimant sought several times to be allowed legal representation at his internal disciplinary hearing. However, the local authority's policy did not allow this and the school declined to permit him to bring a lawyer.
But the court found that, because the disciplinary proceedings were "a determinant of the claimant's right to practise his profession", Article 6 of the European Convention on Human Rights applied.
Now let us be clear about this.
1 Normally the disciplinary and grievance arena has been one where the lawyers stay clear of. My experience that I have tended to get involved at smaller organisations which have what we can call loose procedures.
2 What can be frustrating in dealing with the public sector is their love of procedures and their refusal to engage. Would a lawyer help that in a demanding disciplinary hearing?
3 If you start having lawyers attending the disciplinary procedure, would say an employer respond by getting a lawyer to Chair a Disciplinary hearing?
4 If that were to happen, stand by for more frontloading of legal costs with effectively the Disciplinary Hearing becoming akin to an Employment Tribunal hearing.
5 This gives more incentive to mediate BUT disciplinary hearings are extemely demanding. I query whether this case would be suitable for mediation.
6 This case does not mean that lawyers will be able to attend disciplinary hearings. Iwhere the consequences of dismissal go beyond simply losing a job - ie, they could prevent an individual working in their profession in the future - employers should proceed with caution where legal representation is requested. No doubt lawyers will be arguing this one.
7 Tactically, I would be careful about being aggressive in asserting this right to attend the disciplinary hearing. Sometimes it is better to let the organisation hash it up to increase the perception that your client is the unwitting victim. Alternatively you can make the request knowing it will be refused. Further ammunition for the pot.
Justin Patten, Employment Lawyer