Labour & European Law Review Weekly Issue 310 14 March 2013
Article 6 of the European Convention on Human Rights (ECHR) states that everyone has the right to a fair trial. However, the Employment Appeal Tribunal (EAT) has said in Ministry of Justice v Parry that dismissed employees do not have an automatic right to legal representation at a disciplinary hearing as it only applies if the decision to dismiss impacts on their civil right to practise their profession.
In November 2009, Ms Parry, a district probate registrar, was found guilty of gross misconduct for bullying and harassing a junior employee and given a final written warning lasting 12 months.
On 25 June 2010 (and therefore within the lifetime of the warning), another employee complained about Ms Parry’s “overbearing behaviour”. As a result, she was suspended from duty and after an investigation and a disciplinary hearing, her employer again found her guilty of gross misconduct. She was dismissed on 24 September.
Ms Parry asked if she could be represented by a solicitor at her appeal. Her employer refused but her solicitors sent detailed and lengthy submissions on her behalf which were taken into consideration by the director who heard her appeal. However, he turned down the submissions and rejected her appeal.
She claimed unfair dismissal, arguing that the refusal to allow her legal representation constituted a breach of article 6, as the consequences of her dismissal (she could not work again as a registrar) were so serious.
The tribunal agreed with her that her dismissal was unfair, mainly because she had been dismissed at a point in the procedure where she had been assured she would not be.
It was also unfair because her employer refused to allow her legal representation at the hearing contrary to article 6; and because the dismissing officer had not considered whether Ms Parry’s colleagues might have exaggerated their side of the story.
As the errors were not resolved at the appeal stage, the dismissal could not stand.
The EAT allowed the employer’s appeal, firstly because there was no evidence that Ms Parry had been given an assurance that she would not be dismissed at the end of the disciplinary hearing. There was also no evidence to support a conclusion that the officer hearing the appeal against dismissal had not considered whether the complainants had exaggerated their stories.
Nor was the EAT convinced that Ms Parry’s rights under article 6 had been breached, holding instead that there was not enough evidence for her case to be treated as one of an “exceptional class” of cases that warranted legal representation.
For article 6 to be engaged, there had to be a situation in which the decision to dismiss created a legal impediment to the employee’s civil right to practise their profession. For instance, a doctor who was dismissed and struck off the register would not be permitted to find another job in their chosen profession because registration was obligatory. In those - very exceptional - circumstances, the EAT said that article 6 would guarantee them a right to legal representation at a disciplinary hearing.
This applied whether or not the decision regarding their right to practise was taken in separate proceedings. As long as there was a “sufficient link” between the disciplinary proceedings and the employee's legal right to continue in their profession, the guarantees provided by article 6 arose.
As the tribunal did not have sufficient evidence to decide that question, the EAT remitted the case to a fresh tribunal for re-hearing.
This case demonstrates that only in an exceptional class of cases will a dismissal be unfair because a claimant was not permitted legal representation during an internal disciplinary or appeal hearing. The protection of article 6 will only arise if the decision to dismiss is also a decision which creates a legal barrier to the employee working again in their chosen profession. The fact that dismissal would create a practical bar to future employment in the claimant’s chosen profession is not sufficient to engage article 6.