Limiting the application of Article 6 of the European Convention
The High Court has passed down a judgment in R v Bradford Teaching Hospitals NHS Foundation Trust which has introduced a welcome limitation on the application of Article 6 of the European Convention of Human Rights to disciplinary proceedings.
Article 6 provides that all individuals should have the right to a fair and impartial hearing.
Initially, this was only thought to apply to formal legal proceedings, either in the civil or criminal courts or tribunals. This interpretation was extended by the case of Kulkarni v Milton Keynes Hospital Foundation NHS Trust (previously reported in Know-How), which extended the application of Article 6 to internal disciplinary proceedings and was used to provide an employee with a right to legal representation at such disciplinary proceedings where the outcome would affect the employee’s future career and profession, rather than just their immediate job.
In R v Bradford Teaching Hospitals NHS Foundation Trust, the employee was granted his request to have legal representation at the appeal hearing. However, he argued that the Trust were in breach of Article 6 because the appeal panel was made up of individuals who were largely from the Trust and would, therefore, not be impartial. The employee considered that his future profession would be affected by the decision of the appeal panel and, therefore, argued that the Trust was bound by the principles of Article 6.
The appeal was adjourned until the matter had been heard by the High Court.
The High Court determined that Article 6 was not engaged because the decision of the appeal panel would not affect the employee’s future career so as to stop him practising his chosen profession. The disciplinary process would not result in any action being taken against the employee by the General Medical Council and, whilst there was evidence that the employee had been unsuccessful in applying for alternative jobs in the NHS, he was still able to continue to practice successfully as a private consultant.
The High Court did consider whether there was an issue over the impartiality of the appeal panel and determined that, even if Article 6 were engaged, the appeal panel was sufficiently impartial to comply with Article 6. It noted that connection with an employer does not necessarily indicate a bias. There was no need for all, or indeed any, of the panel members to come from outside the Trust.
The application of Article 6 to internal proceedings within public bodies is an emerging area of law. It is helpful that this case has identified limited to which the Article will extend.