Internal disciplinary hearings and right to legal representation. Ministry of Justice v Parry [2012]

Settlement agreements often arise around the time of internal disciplinary hearings. The following case deals with the right to legal representation for disciplinary hearings.

Mrs Parry, a District Probate Registrar, was dismissed for gross misconduct in November 2009 namely for the bullying and harassment of junior employees. Mrs Parry appealed the decision and requested that she be accompanied at the appeal by a legal representative. Mrs Parry's Employer declined this request and subsequently dismissed the appeal.

Mrs Parry brought a claim for unfair dismissal in the Employment Tribunal. The Tribunal held that ‘the decision to dismiss was unfair primarily due to Mrs Parry having been dismissed at a point in the procedure where she had been assured she would not be dismissed but also due to the lack of legal representation and the fact that the dismissing officer did not approach his task with an open mind...’ Mrs Parry's employer appealed the decision to the Employment Appeal Tribunal (EAT).

The EAT recognised that an employer’s contractual right to dismiss an employee could impact on their broader civil rights, i.e. the right to practice a particular job or profession. However, the EAT found that there was no prima facie right to a legal representative at internal disciplinary hearings unless, the circumstances fell within an exceptional class of case in which the decision to dismiss from employment is also a decision which creates a legal barrier to the employee working again in their chosen profession so that, Article 6 of the European Convention on Human Rights, did guarantee legal representation at an internal disciplinary hearing.

The EAT in this case, referred the matter back to the tribunal for a fresh hearing as it was held that, the tribunal had not been provided with sufficient evidence to determine whether the employer's decision to dismiss Mrs Parry would have precluded her from practising as a district probate registrar in the future.

The decision reinforces the fact that a right to legal representation at internal hearings will only be triggered in very exceptional circumstances.

Key point:

It will be an unusual case where an employee would be entitled to legal representation at an internal meeting. However, an employee is entitled and in fact must have independent legal advice for any settlement agreement that is offered at any stage of a disciplinary procedure.

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