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.

Dementia Friends image

Dementia Friends

Maples Solicitors are proud to announce that they have now joined to become Dementia Friends which is an Alzheimer’s Society initiative.

The private client department of Maples Solicitors prepare Wills and Lasting Powers of Attorney on a regular basis and this often involves dealing with clients who are suffering from dementia. The private client team pride themselves on spending as much time as is necessary to assist all of their clients, but those suffering from dementia often require additional assistance and time to ensure that they have fully understood the legal documentation that they are creating. The private client department are regularly complimented on the way they deal with such clients, whether this be explaining things to them in a clear and uncomplicated manner, spending time with them or putting them at ease.

It is a misconception that anyone suffering from dementia cannot make a Will or Lasting Power of Attorney. Only if someone lacks sufficient mental capacity are they unable to make such a document. It is therefore vitally important upon any diagnosis of dementia that legal advice is taken as soon as possible to make sure that your affairs are in order so that it is easier for your family to deal with your affairs if you are unable to do so yourself.

To become Dementia Friends, Maples Solicitors have pledged to develop their understanding of dementia and continue assisting clients suffering from dementia with their legal affairs in a respectful, friendly and efficient way that is not daunting making the process as easy as possible.

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