Employee Rights and Wrongs
It’s a concerning time for employers in the area of staff disciplinary as new case law is unfolding relating to an individual’s right to be accompanied at disciplinary meetings by a qualified solicitor.
Brendan Wincott, mhl support’s Employment Law compliance officer talks us through the recent case law and gives us his predictions on what the future has in store. “The case that started it all off is Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789 where at present, the Court of Appeal ruled that the individual had the right to have their solicitor present with them at the disciplinary meeting.
Whilst the case also relied largely on an ambiguous contractual right allowing this, it has raised the argument that an individual had the right of such accompaniment through the operation of their fundamental human rights derived from the European Convention on Human Rights (article 6 which covers the right to a fair trial).
The Court said in this case that had they been required to determine the issue under the article 6 argument, they would have ruled that the right to bring a solicitor to the meeting can be invoked where the consequences of the disciplinary meeting are such that they could result in the loss of that person’s career opportunity. In the present case, it concerned the risk that a doctor may not be able to continue in the medical profession.”
This is not the only case that we have seen coming through the Courts, “the more recent case on this topic is R (on the application of G) v Governors of X School and Y City Council [2010] EWCA Civ 1 CA which was only determined at the Court of Appeal just the other day. The Court of Appeal followed the reasoning in its earlier case and again ruled that the individual could be accompanied by their solicitor at an internal disciplinary meeting. In this case, the decision from any disciplinary meeting may lead to the employee in question being prevented from working with children and an inclusion onto the current “barred lists” introduced as part of the new vetting and barring procedures”.
Asked what the future has in store, Brendan further tells us “that permission has been granted to appeal to the House of Lords in the Kulkarni case and we will have to wait to see if an appeal is sought in the present case. I would not suggest that the current rulings are set in stone as yet, as there are still opportunities for the parties in these cases to appeal the decision to higher courts, and given that the case involves human rights implications, reference to European courts may also be a possibility”.
Brendan has extensive understanding and experience in employee relations and practical application of managing disciplinary processes. When asked what employers should do in view of the two cases, he said “It’s important to be mindful when undertaking internal disciplinary processes, especially if the possible consequences of such disciplinary action could lead to a loss of ability to undertake their career. It is important to seek specialist advice and guidance on any request by an employee to have their solicitor with them in an internal disciplinary meeting, particularly in view of what is presently a very uncertain area of law.
mhl has a team of specialist and experienced advisers who are able to tell you more about the developments in this area and to help apply the present rulings to individual cases. If you are an existing client, please call one of the team today on 08453 100 999 quoting your PCN number. If you are not already a client, but are interested in learning more about these changes, or the services mhl provide, please call Katy Vaughan on 08453 100 600.
