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Lawyers banned from internal disciplinary hearings- 09/08/2011
Employees no longer have the automatic right to legal representation at internal disciplinary proceedings when their career is deemed to be at stake, according to a leading Wolverhampton employment lawyer.
Tracy Worthington, Partner and Head of Employment at West Midlands law firm FBC Manby Bowdler LLP, says that employers will generally welcome a Supreme Court decision which marks a U turn on previous practice.
“Employees were using Article 6 of European Convention on Human Rights, to claim that their right to a fair trial was being infringed, but this was only at a stage when the matter was being considered internally. This entailed additional time and expense for the employer and made it less likely that discipline procedures would be brought,” says Mrs Worthington, who is based in FBC Manby Bowdler’s Wolverhampton office.
The Supreme Court overturned the decisions of the Court of Appeal and High Court that a music teaching assistant at a primary school should have been allowed legal representation at an internal disciplinary hearing where he was dismissed for gross misconduct. He claimed that his right to a fair trial had been infringed because the finding would be likely mean that he would then be placed on the “barred” list by the Independent Safeguarding Authority (ISA).
Mrs Worthington says: “Following this ruling each case will need to be considered on the specific facts, as it may be that procedures create contractual rights for disciplinary matters to be dealt with in a certain way, including the availability of legal representation. This may particularly be the case when the employer holds a ‘monopoly’ on certain jobs, such as the NHS.
“Outside the public sector some employment tribunals have considered rights under Article 6 if an employee brings an unfair dismissal claim. It is therefore vital that employers follow closely their written disciplinary procedures. These should set down the entire process for dealing with any disciplinary matter and will include entitlement for an employee to have a union or personal representative present at a disciplinary hearing.”
With 33 partners, FBC Manby Bowdler is one of the largest law firms in the West Midlands. In addition to Wolverhampton, the firm also has offices in Willenhall, Telford, Shrewsbury and Bridgnorth.