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Internal disciplinary hearings and legal representation

Internal disciplinary hearings and legal representation


Any worker who is required to attend a disciplinary hearing has a right under the Employment Relations Act 1999 to be accompanied by another of the employer’s workers or a trade union official. There is no statutory right to be accompanied by any other type of person. Therefore under statute, an employer is not required to allow a worker to be accompanied by a friend or family member who does not work for the employer a or a legal representative, but of course may do so voluntarily by choice.

In Kulkarni v Milton Keynes Hospital NHS Trust [2008] EWHC 1861 (QB), Dr Kulkarni was accused by a patient of inappropriately examining her – a very serious allegation which could lead to him being ‘struck off’. His employer, the Trust, suspended him and started an investigation. The employee was then invited to a disciplinary hearing under the Trust’s contractual disciplinary procedure, which followed a national disciplinary framework.

The employee requested that he be allowed to bring a lawyer to represent him. Under the Trust’s disciplinary procedure, employees were not allowed to have a lawyer represent them at such hearings, and the Trust stated informed  Dr Kulkarni that such representation was not necessary. The employee applied to the High Court for a without notice interim injunction to halt proceedings, on grounds including breach of contract by the Trust, for refusing his request.

The High Court refused the injunction holding that an employer’s internal disciplinary rule which disallowed legal representation was not in breach of the principles of natural justice, the implied term of trust and confidence, or Article 6 of the European Convention on Human Rights despite the seriousness of the charges against the employee and their drastic consequences if upheld.

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