Legal Representation at Disciplinary Hearings-an Update

Some time ago there was a Judgment which in effect gave the right to an employee to be accompanied at a disciplinary hearing by a lawyer, if the misconduct they were accused of could result in them being barred from acting in that particular profession/area.

That Judgment has now (more or less) been reversed. The Supreme Court has decided that there is no right under human rights legislation to legal representation at a disciplinary hearing, even where dismissal could lead to a process capable of barring an individual from a profession, provided that the subsequent barring decision process is sufficiently independent of the dismissal decision.

In that particular case, simply because the relevant employer (a school in that case) had to refer the ex employee (who had been dismissed for gross misconduct relating to a student at their school) to the ISA, (the result of which he may end up on the barred list), this didn’t give the employee the right to legal representation at the employee's internal disciplinary hearing.

The Court found that such circumstances are different to the cases where the first decision actually also determines the second set of proceedings (in which case the individual is entitled to legal representation at both), but in terms of the ISA, that conducts its own procedures to decide whether or not to put the person on the barred list.

Therefore, if employees facing serious misconduct allegations demand that they have the right to be accompanied by a lawyer, this request can be refused on the basis of this case.

Please contact Lynne Woodhead or Nicholas Hall for further information on 01604 233233 or by email.