The EAT has recently affirmed that it will generally not be unfair for an employer to refuse an employee’s request to have legal representation at an internal disciplinary hearing, unless the employer’s decision could prevent the employee from continuing to work in their chosen profession.
In such circumstances, Article 6 European Convention of Human Rights (ECHR) may operate to guarantee the employee a right to legal representation, even at internal hearings.
In this case, the employee was a District Probate Registrar and was on a final written warning for alleged bullying and harassment. Similar complaints were made against her while this warning was still active on her disciplinary record. These complaints were upheld and she was summarily dismissed. At her appeal against the decision, she asked if she could be represented by a solicitor. The employer denied this request.
The EAT found that there was insufficient material to show that the decision to dismiss in this case was also a decision which created a legal barrier to the employee working again as a Probate Registrar. However, it also stated that where there is sufficient evidence that an employer’s decision could create such a legal barrier, Article 6 will be engaged even when the issue as to whether the employee will be able to continue in their chosen profession will be determined by an external body at a later date.
In other words, the employee lost on the facts of this case but the principle that potential dismissals which might affect ‘fitness to practice’ are special cases, entitling employees to legal representation at internal disciplinary hearings, was upheld.
Employers employing individuals who are regulated by external bodies will therefore need to carefully assess whether a decision to dismiss could create a legal, as opposed to a purely practical, barrier to the employee’s ability to carry on in their profession. If the decision is likely to create such legal barrier, requests for legal representation will be difficult to refuse.
(Case name: Ministry of Justice v Parry UKEAT/0068/12/ZT)
The full case can be found here.