Article 6 and disciplinary hearings in the public sector
There were a number of decisions last year which suggested that, in some circumstances, public sector employees could potentially rely on Article 6 of the European Convention on Human Rights during the disciplinary process. It was argued that Article 6 (the right to a fair trial) could give employees in the public sector an implied right to cross-examine witnesses; to legal representation at the disciplinary hearing; and to insist on a disciplinary hearing before an external panel. However, the Court of Appeal may have now deterred similar claims by finding that a NHS Trust’s decision to dismiss a doctor did not engage Article 6.
Dr Mattu was suspended on disciplinary grounds and the Trust decided that he would require re-skilling before being allowed to return to his post. He was dismissed on grounds of gross misconduct after repeatedly refusing to cooperate with the re-skilling process. The disciplinary hearing had been held in Dr Mattu’s absence (having already been postponed six times at Dr Mattu’s request). Dr Mattu claimed that Article 6 was engaged, meaning that his disciplinary hearing and appeal should have been considered by a panel wholly independent of the Trust.
The Court of Appeal found that the disciplinary proceedings did not engage Article 6 as they involved the employer exercising a contractual power and not the determination of a civil right. The majority of the Court also doubted comments made in the 2009 case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust that Article 6 would be engaged where dismissal could lead to an employee being effectively barred from working at all in their chosen profession.
We don’t yet know if Dr Mattu intends to appeal to the Supreme Court.
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