Employee Legal Representation/disciplinary

25th October 2011
Employee Legal Representation/disciplinary image

Should an Employee be allowed Legal Representation

One issue that frequently arises in Disciplinary Procedures is whether or not an Employee subject to those proceedings has a right to legal representation at the Disciplinary Meetings.  The ACAS Code of Practice, although not binding, provides guidance that a Tribunal will usually expect an Employer to follow; namely that the Employee should be allowed a Trade Union Representative or work colleague to be present.

However in certain cases Employees have tried to argue, under the European Convention on Human Rights (Article 6) that they should be entitled to have legal representation.  Most of these cases have related to Disciplinary Meetings involving teachers or doctors, who as well as facing the risk of dismissal could also latterly be barred from their profession as a result of the alleged misconduct.

A recent example of this is the case of R –v- The Governors of X School.  Here a Teaching Assistant was accused of forming an inappropriate relationship with a 15 year old boy.  Initially the Disciplinary Panel found the Teaching Assistant guilty of gross misconduct and there was an immediate dismissal.  At the same time, the dismissal was notified to the Independent Safeguarding Authority (ISA) so it could determine whether to place the Teaching Assistant on the “barred list” preventing him from working with school children.

The Teaching Assistant appealed against the dismissal using the internal Disciplinary Procedure, and requested legal representation which was refused.  The Teaching Assistant then sought a judicial review.  The Supreme Court rejected his application, since it felt that the ISA would carry out its own full investigation and make its own judgement upon the conduct of the Teaching Assistant.  Hence the Supreme Court felt that the ISA would not necessarily just follow the school’s decision.  As a result the Supreme Court felt that in the particular circumstances that there was no breach of the European Convention on Human Rights by failing to allow the Teaching Assistant any legal representation at the school’s internal Disciplinary Meetings.  However one of the Judges did disagree and felt that legal representation should be available at the disciplinary stage in such circumstances.

Daven Naghen, head of the Employment Team at Maples Solicitors LLP commented as follows:-

“In most Disciplinary Processes, there would ordinarily be no right for an Employee to require legal representation.  However, particularly with professions like teachers and doctors, the answer may not be quite so straight forward since the disciplinary outcome may lead to that Employee being barred from his or her profession.  In such circumstances the Courts have held that the refusal to allow legal representation may not amount to a breach of the Employee’s human rights but I do not think that an Employer can necessarily be sure of this finding in every case.  In cases of this nature, the Employer should seek independent legal advice before accepting or declining an Employee’s request for legal representation at a Disciplinary Meeting.”

For advice on this subject please contact either Daven Naghen on 01775 722261, daven.naghen@maplessolicitors.com or at 23 New Road, Spalding, Lincolnshire PE11 1DH or Gemma Mayer on 01775 722261, gemma.mayer@maplessolicitors.com or at 23 New Road, Spalding, Lincolnshire PE11 1DH.

The Will Writing Company Limited image

The Will Writing Company Limited

It has been reported that The Will Writing Company Limited, whose registered office is at Ergo House, Mere Way, Ruddington Fields Business Park, Nottingham, have ceased to practise.

If you made Wills using this company then it is probably worthwhile making contact with them in order to retrieve your Wills. Once you have your Wills you may wish to make an appointment with one of the lawyers in our Wills, Lasting Power of Attorney and Probate Team in order to review your Will to ensure it still accords with your wishes. We also offer a Will storage facility which is free of charge.

To review your Will please contact one of our lawyers in the Wills, Lasting Powers of Attorney and Probate Department:-

Jane Mawer- jane.mawer@maplessolicitors.com
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office on 01775 722261 and ask to speak with one of the team.

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Gemma Mayer LLB

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Anita Toal LLB BA

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Daven Naghen LLB

"Daven provided an excellent service, from attending the first interview with me to the final court appearance. He filled me full of confidence that he would defend me to which he did and come out with an excellent outcome in view of my position that I had put myself in."

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

This is the second time we have used Mike Pepper at Maples Solicitors in the sale of our house. We cannot praise Mike enough for the highly efficient and professional service that he has provided us with. He is by far the best solicitor we have ever worked with, and the service that he has provided us with has gone far and beyond anything we have ever experienced. We have found the whole process to be a very relaxing experience.

Claire Smith FCILEx

Claire Smith has been amazing in every way. I highly recommend her and I am so grateful for all her help. She’s professional on all levels, reliable, extremely organised and I will be recommending her to everyone. I’m very lucky to have had her representing me and I can’t thank her enough. She is an asset to Maples. Thanks so much Claire!

Anita Zaborniak

We found it a pleasure to deal with Anita Zaborniak, she was most helpful and informative and kept us up to date with the progress of the purchase of our new home. If we were to move again we wouldn’t hesitate to use Maples again.