R (on the application of G) v The Governors of X School and another [2009] EWHC 504, the High Court held that the gravity of the allegations against him meant that the employee in question, a primary school music assistant, was entitled to legal representation during his disciplinary and appeal hearings.
Following allegations of kissing a child, the school took disciplinary action against the employee, a music assistant. His request to have legal representation at his disciplinary hearing ,which led to his summary dismissal, was refused by the school. He was also told that he would be reported to the "appropriate agencies," on the basis that he might be unsuitable to work with children. The employee gave notice of his intention to appeal against his dismissal. His request to have legal representation at the appeal hearing was once again turned down. Subsequently, the Secretary of State was notified of the employee's dismissal for gross misconduct.
The employee applied for judicial review, arguing that his rights under article 6 of the European Convention of Human Rights had been breached by the School's decisions (i) not to allow him legal representation at the disciplinary or appeal hearings; and (ii) not to allow him to cross-examine witnesses at those hearings. As a result, the hearing of his appeal was stayed pending the outcome of the judicial review proceedings.
The High Court held that the employee was entitled to legal representation at the disciplinary and appeal hearings as he could not fairly be expected to represent himself and being accompanied by a trade union official or colleague would not be sufficient. Although it stressed that this decision only related to the particular facts and was not intended to have wider implications, this case does highlight that legal representation during the disciplinary process may be permitted in exceptional circumstances.
Interestingly, no mention was made in that case of the High Court's decision in the earlier case of Kulkarni v Milton Keynes Hospital NHS Trust on similar facts. Dr Kulkarni was a doctor who, shortly after starting work for Milton Keynes Hospital NHS Trust, was accused of improperly touching a patient. He was not permitted to have legal representation at a subsequent disciplinary hearing and he claimed that this infringed his human right to a fair trial, in terms of Article 6 of the European Convention on Human Rights. The High Court rejected his claim, but that decision has now been overturned in the Court of Appeal.
Lady Justice Smith ruled that, in effect, the relevant disciplinary procedure provided for a contractual right to be legally represented by a lawyer instructed by the Medical Protection Society. Whilst the procedure stated that an employee's representative could be legally qualified but would not "be representing the practitioner formally in a legal capacity", Lady Justice Smith ruled that the words quoted above were meaningless and should be "blue-pencilled" (i.e. deleted). There was, therefore, no requirement to rule on the Article 6 issue.
The decision means that an NHS Trust doctor facing serious disciplinary allegations has the contractual right to a legal representative instructed by his medical defence organisation.
Of wider interest, however, are the potential implications for all public sector employees, owing to the (non-binding but persuasive) observations which Lady Justice Smith made in relation to an individual's Article 6 right to a fair trial.
Lady Justice Smith indicated that had she been obliged to rule on the claimant's Article 6 argument, she would have held that it was engaged in circumstances where a doctor faced charges which were "of such gravity" that if proven, would have effectively barred them from employment in the NHS. She went on to indicate that even in the context of civil proceedings, Article 6 would imply a right to legal representation in such circumstances because the doctor faced, in effect, a criminal charge and although it was being dealt with by disciplinary proceedings, the issues were virtually the same and the consequences of a finding of guilt very serious.
The matter came before the Court of Appeal on 23 July 2009 ([2009] EWCA Civ 789 [2009] WLR (D) 257} Kulkarni v Milton Keynes Hospital NHS Foundation Trust and another
The court comprise Lord Justices Sir Mark Potter P, Smith, Wilson.
A medical practitioner, pursuant to his contract of employment, was entitled to be represented by a lawyer instructed or employed by the Medical Protection Society, or other defence organisation, in disciplinary proceedings brought by his employer.
The Court of Appeal so stated in a reserved judgment, allowing the appeal of the claimant, Dr Kunal Kulkarni, from the refusal of Penry-Davey J on 1 August 2008 to make a declaration that he be entitled to legal representation in disciplinary proceedings brought by the employer, Milton Keynes Hospital NHS Trust. The Secretary of State for Health appeared on the appeal as an interested party.
SMITH LJ said that the employer’s position was that its procedures were based upon the Department of Health policy document “Maintaining High Professional Standards in the Modern NHS” (“MHPS”) which did not permit legal representation at disciplinary hearings. The claimant argued that the employer had a discretion to allow representation either under the express terms of his contract of employment or pursuant to the implied term of trust and confidence. Alternatively, the denial of legal representation was a breach of natural justice and a denial of his rights under art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Modifications to the contracts of doctors took place in 2005 when MHPS was promulgated. Para 22 in Part IV provided that “ the practitioner may be represented in the process by a friend, partner or spouse, colleague or a representative who may be from or retained by a trade union or defence organisation. Such a representative may be legally qualified but they [sic] will not, however, be representing the practitioner formally in a legal capacity”. Exactly what was meant by the proviso that the legally qualified companion would not be acting “in a legal capacity” was not clear. The task of the court was to decide what para 22 meant and what it permitted. The subjective wishes of the parties was not relevant and it was not relevant that the Department of Health wanted to remove the right to legal representation which doctors and dentists had enjoyed for many years. In Her Ladyship’s view, properly construed, para 22 permitted a practitioner to be represented by a legally qualified person, employed or retained by a defence organisation. “Retained” included “instructed by”. The two words meant the same. However the doctor was not permitted to bring a legally qualified person whom he instructed or retained independently. The expression “not representing the practitioner formally in a legal capacity” was devoid of meaning. If “legal capacity” were intended to be synonymous with “professional capacity” then one could understand that the lawyer who was a friend spouse or partner or colleague could be said to be acting in a personal capacity as opposed to a professional capacity. Even so, that person would be entitled to do all the things that lawyers do when representing clients. Those functions were set out at the end of para 22. But when it was seen that a legally qualified person either employed or retained by a defence organisation might represent the practitioner, it was meaningless to say that a person was not acting in a “legal” or “professional” capacity. Once a lawyer had been admitted as a representative, he or she was entitled to use all his or her professional skills in the practitioner’s service. The claimant was contractually entitled to be represented at his disciplinary hearing by a lawyer instructed by the Medical Protection Society. Other issues, now not germane in this case, including whether it was lawful for the employer to restrict the employee’s rights of legal representation, could be framed as a question of natural justice in purely domestic law, or of breach of rights under art 6 rights, if engaged. The answer should be the same. Had it been necessary to decide the issue, her Ladyship would have held that art 6 was engaged where an NHS doctor faced charges which were of such gravity that, if proved, he would be effectively barred from employment in the NHS and, in circumstances of this kind, a right to legal representation would be implied because the doctor was facing what was in effect a criminal charge.
WILSON LJ and SIR MARK POTTER P agreed.
This decision clearly has significant potential implications for all public sector employees, not just doctors. For example, public sector employees in areas such as social care and teaching are likely to seek to rely on these comments, where dismissal leads to mandatory reporting to an external body which may lead to it being extremely difficult, if not impossible, for an individual to work in that field again.
Given the potential impact on internal disciplinary proceedings for public sector employees, permission to appeal to the Supreme Court has been granted on the ground that this is a point of law of public importance.
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