June 26, 2013

Dismissal procedure and legal representation

The Claimant, a District Probate Registrar, was on a final written warning for gross misconduct for bullying and harassment and during the period of the warning another complaint was made regarding her behaviour. At the disciplinary hearing she was dismissed for gross misconduct. At the appeal she asked if she could be represented by a solicitor but this request was refused. The solicitor subsequent sent in lengthy submissions which were considered by the appeal officer and some of these were read out by the Claimant at her appeal hearing. However her appeal was dismissed.

The Tribunal found that she was unfairly dismissed mainly because she had been given an assurance that she would not be dismissed at the end of the disciplinary hearing but also because of lack of legal representation. The Tribunal found this to be a breach of Article 6 because the decision to dismiss resulted in the Lord Chancellor’s automatic recommendation that she be removed from her post which would prevent her from continuing to practise her profession and hold public office.

The EAT, in remitting the case to a different Tribunal, focused on the lack of legal representation as being the only reason left for the unfair dismissal (they dealt with the other reasons for the dismissal allegedly being unfair). The EAT reviewed the extensive guidance on this issue in previous cases which had held that Article 6 may be engaged by the disciplinary procedure if the procedure is determinative of the individual’s right to practice their profession; or if the proceedings have “a substantive influence and effect” on later proceedings that will make such a determination. Cases had also looked at the distinction between the contractual rights of both employer and employee under the contract and the civil right to practice a profession, and that where an employer’s decision to dismiss had a practical, rather than a legal, effect on the individual’s employability, this did not engage Article 6.

Adopting these principles, the EAT found that the Tribunal was correct to find that the Article 6 protection arose only where the outcome of a disciplinary process determines whether the individual’s civil rights to practice their profession are adversely affected. This may happen in more than one set of proceedings i.e. disciplinary proceedings resulting in dismissal meaning a referral to a regulatory authority which decides, on the basis of the dismissal, whether or not the individual can continue to practice their profession, as long as there is a sufficient link between the two. However in this case there was no evidence in front of the Tribunal that the decision to dismiss would inevitably result in the Claimant’s removal from office and consequently from the list of Probate Registrars which would effectively prevent her from continuing to practice her profession. As such the Tribunal was not in a position to adjudicate on whether Article 6 would be engaged. The EAT commented that it would be what it described as a “curious system” if what an employer decided at a disciplinary hearing determined, not only whether or not the individual continued in that employment, but also whether they could continue to work in that field at all.

This case gives useful guidance that Article 6 will only be engaged where there is evidence that the disciplinary hearing will be determinative of the employee’s right to practise his or her profession. Consequently this will serve to considerably limit the instances where it will be unfair not to allow legal representation at internal hearings.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.


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