Tuesday 27 November 2012

Right to Legal Representation in Internal Disciplinary

[Thanks to Angharad Davies of Dere Street Barristers for preparing this case summary]

Is it unfair for a Claimant to not be permitted legal representation during an internal appeal hearing?

Not necessarily, says the EAT in Ministry of Justice v Parry, unless the circumstances fall within an exceptional class of case in which the decision to dismiss from employment is also a decision which creates a legal barrier to the employee working again in their chosen profession, such that Article 6 ECHR guaranteed a right of legal representation at a disciplinary hearing.

The Claimant was a District Probate Registrar and had a final written warning for gross misconduct, namely bullying and harassment. Further similar complaints were made within the currency of the warning. The complaints were upheld and the Claimant summarily dismissed.  The Claimant asked if she could be represented by solicitors at her appeal.  The request was declined but written submissions were prepared and considered by the Respondent.

The EAT had to consider whether legal representation at the appeal was mandated and if so would a dismissal in the absence of such an opportunity be necessarily procedurally unfair. The EAT were referred to a number of authorities which demonstrated that a pragmatic, context-sensitive approach needed to be adopted to determine whether Article 6 was engaged.

The EAT recognised that there was a contractual right to dismiss an employee but in some circumstances this decision could impact on an employee's broader civil rights: whether they could continue to work not simply in their role but in their chosen profession. In these circumstances where the employee's civil rights were engaged the guarantees provided by Article 6 must be observed. This was essential whether or not the decision regarding practice in their chosen profession would be taken at a later date by an external body. If there is a sufficient link between the internal proceedings and the determination of the employee's right to continue in their profession, Article 6 is engaged.

The EAT held that the tribunal did not have sufficient evidence to decide whether Article 6 applied and therefore they were wrong to make the decision. The matter was remitted to a fresh tribunal.

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