Nursing a right to a fair hearing

Tehrani v UKCC for Nursing, Midwifery and Health Visiting [2001] IRLR 208

With the coming into force of the Human Rights Act, there has been much speculation about the impact of Article 6 of the European Convention on Human Rights - the right to a fair trial - on internal and professional disciplinary proceedings. In Tehrani v UKCC, the Scottish Court of Session finds that disciplinary proceedings before the UKCC's Professional Conduct Committee (PCC) are covered by Article 6, although a right of appeal to a court means that not every stage of the disciplinary procedure has to satisfy all the consequent requirements of an impartial tribunal.

Ms Tehrani was a qualified nurse. The PCC decided that disciplinary proceedings should be started against her. Those proceedings could lead to her being removed from the register of nurses entitled to practice. She brought a challenge under Article 6, claiming that she was entitled to a hearing before an impartial tribunal.

Article 6 applies where there is a "determination of an individual's civil rights and obligations". The European Court of Human Rights has not always been consistent in its reasoning in deciding whether or not there is a determination of those rights in disciplinary proceedings. By and large, it has been easier to engage Article 6 in professional disciplinary proceedings than in internal disciplinary procedures.

The Court of Session found that Article 6 applied because the decision of the PCC could lead to Ms Tehrani finding it difficult to get another job as a nurse and her earnings would be affected. This meant that she was entitled to a fair trial, and that included a hearing before an impartial tribunal. Ms Tehrani lost her case before the PCC, she could appeal to the court. The court would satisfy the requirements of an impartial tribunal and this meant that it did not matter that the hearing in front of the PCC did not comply with Article 6.

The Court of Session gave some helpful guidelines as to why, in isolation, the PCC may not be an impartial tribunal. Most importantly, the same people could sit on both the Preliminary Proceedings Committee, which would decide if proceedings should be started, and the PCC which would then determine those proceedings. Also, the UKCC was the body which brought disciplinary proceedings, as well as being the body which set the guidelines used to measure whether proceedings should be started. It was not enough that the prosecution was brought by a solicitor, that detailed rules of procedure applied or that detailed reasons had to be given for any decision.

Key issues remain. Is Article 6 engaged in internal disciplinary proceedings? If so, is the right to claim unfair dismissal at an Employment Tribunal, and the re-birth of the range of reasonable responses test in misconduct cases, sufficient to correct Article 6 defects at earlier stages in a disciplinary procedure? We are not at all convinced that it is.

The right to claim unfair dismissal as it stands is not a right to a re-hearing. Instead, the Employment Tribunal will review the employer's standard of investigation and decision making process. In addition, the successful applicant in an unfair dismissal claim is unlikely to be awarded re-engagement or reinstatement. It may well be that a Tribunal does not have sufficient influence on proceedings to ensure compliance with Article 6.

Watch this space!