Last year I reported on the case of Kulkarni v Milton Keynes Hospital Trust in which the high Court declined to allow a trainee doctor facing disciplinary proceedings to be represented by a lawyer even though losing might render him unemployable. The crux of that decision was that there was no written term of his contract that he was entitled to representation in this way. The case then went to the court of Appeal. By then a document that appeared not to give the employee a right of representation by a legally qualified person had been looked at in a different light and so the court decided that the correct interpretation of it meant that he could be represented. That was of course a case decided on its particular facts. However, the court helpfully went on to consider in a non-binding opinion whether there was an implied right to legal representation at internal hearings in a case where an adverse finding could lead to the effective loss of a career. A trainee doctor who in this case faced allegations that would undoubtedly have lost him his job if proved would have no real hope within the UK of being able to continue his medical career. The court’s opinion was that in these special circumstances Article 6 (right to fair trial) of the European Convention on Human Rights was engaged so that an employee would be entitled to legal representation. There will probably be limited circumstances when this implied right to representation can be used but in the medical field (doctors, dentists and possibly nurses) it may be invoked often. In other professions there may be circumstances too which could apply (e.g. teaching) in certain circumstances. The misconduct alleged may be relevant. |
