Legal Representation at Disciplinary Meetings

Court of Session’s Ruling in ‘Petition of Susan Dryburgh for Judicial Review of Decisions NHS Fife’

An interesting case which came before the Court of Session recently should provide broad reassurance for employers across Scotland and the rest of the UK. In a judicial review action, a Fife dental nurse, Ms. Dryburgh, argued that when she was not permitted legal representation either at her Disciplinary Meeting (where a decision was taken for her to be sacked over alleged racist conduct), or the appeal for said decision, this amounted to a violation of her Human Rights under Article 6 of the European Convention.

There is a statutory entitlement, under Section 10 of the Employment Relations Act 1999, that in any disciplinary meetings, an employee is entitled to have another employee or a trade union representative present, but current legislation has not yet gone so far as to suggest this right extends to legal access.

The Right to a Fair Trial under Article 6, which includes a right to legal representation, has caused headaches in Scotland before, such as in the landmark 2010 case Cadder v HMA where the Supreme Court ruled that a suspect detained by police must be able to seek legal representation. Ms. Dryburgh’s lawyers pointed to a ruling from Strasbourg (the case of Le Compte, Van Leuven and De Meyer v Belgium 1981) where a distinction was ordered between disciplinary hearings in which an employee could be fired (where legal representation is a right), and hearings without this power. Therefore, because the result of the Disciplinary Meeting was Ms. Dryburgh losing her job with NHS Fife, it was argued that a solicitor should have been present.

The result of the case however, went in favour of NHS Fife, and the court has clarified that internal disciplinary procedures do not entitle the employee to access to a solicitor. A crucial consideration was the so-called Tripartite Test (established in West v Secretary of State for Scotland 1992), where it was ruled basically that there must be three independent parties to the dispute before a right to legal access emerges. For instance, in an Employment Tribunal, solicitor access would be a right due to the tripartite relationship of an employer, employee and an impartial dispute resolver. In this case however, the disciplinary procedures were wholly internal and involved only the employer and employee, in accordance with the contract of employment between Ms. Dryburgh and NHS Fife.

In response to the Le Compte case cited by the petitioners, Lord Burns stated that if an internal Disciplinary Meeting has the result of legally barring someone from exercising their civil right to practise a particular profession (as a dental nurse, for instance), the Strasbourg jurisprudence would be followed and legal access could be a right. However, nothing decided by NHS Fife would prevent Ms. Dryburgh from applying to practise as a dental nurse outside the NHS, as the majority of them do.

Previous case law corroborates Lord Burns’ findings here. In R (on the application of G) v the Governors of X School 2009, a music teacher accused of improper relations with a pupil contested the decision to not allow him legal representation at his disciplinary hearing, where he faced the possibility of being ‘black-listed’ and forbidden from working with children again, thus effectively ending his career as a teacher. Here, Article 6 was invoked and the right to a solicitor was guaranteed. However, the key difference was that this hearing could have ended someone’s career for life, instead of terminating one contract in particular. Kulkarni v Milton Keynes Hospital NHS Foundation Trust 2009 was a similar case involving a junior doctor who faced the prospect of never serving as a doctor in the UK again after his disciplinary meeting; the Court of Appeal ruled he was entitled to legal representation under Article 6.

What does this mean for employers?

In short, where an employee is subject to an internal disciplinary hearing, this ruling means there is no automatic right for them to be present with a solicitor. This case will be a relief for employers and businesses who may risk incurring large fees or insurance claims for their own legal advice and representation, should employees be given this right to representation.

Presumably the situation would be different where perhaps an external or judicial third party was involved, or where a decision was taken to prohibit a person from ever practising their profession again. However, in most disciplinary hearings, even where a contract of employment could be dissolved and the employee fired, no right exists to solicitor access.

The law referred to in this article would apply across Scotland, England and Wales.