The question of whether an employer’s failure to properly carry out an internal disciplinary procedure can amount to a breach of an employee’s right to a "fair and public hearing" under the European Convention of Human Rights has been comprehensively answered in the recent case of Mattu v University Hospitals of Coventry and Warwickshire NHS Trust. The answer is no (most of the time).
This question is important as it also relates to whether an employee is entitled to be accompanied by a legal representative during a disciplinary meeting: if a disciplinary hearing is one to which the European Convention of Human Rights applies, then it is a hearing at which an employee is entitled to be legally represented.
The suggestion that the European Convention of Human Rights would be engaged if an employee was at risk of effectively being barred from their profession arose in the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust and SoS for Health; however, this was a case regarding an employee’s contractual right to be accompanied to a disciplinary meeting by a legal advisor and, therefore, discussion regarding the application of the European Convention of Human Rights was not central to the case and was only briefly touched upon.
Now that the question has been fully considered, the Court of Appeal has found that the European Convention of Human Rights does not apply to a disciplinary process by an employer, whether in the public or private sector, even if the fact of a dismissal occurring will effectively prevent the employee working in his field of employment.
An employee will only be entitled to be accompanied by a legal representative where the determination of the employer will lead to their barring from their profession with no further consideration of the facts by a secondary body. Such circumstances should be extremely rare as, in most cases, an employer’s disciplinary process will simply feed in to a secondary professional body, rather than be determinative of the professional body’s decision.
This is good news for employers as it means that they can, in the main, be comfortable in denying an employee’s request for legal representation at a disciplinary meeting: ensuring that, as envisaged when introduced, disciplinary matters can be dealt with internally and, hopefully, swiftly.