Human Rights Act 1998: right to a fair hearing

Article 6 of the European Convention on Human Rights (ECHR) provides that, in determining civil rights and obligations or criminal charges, everyone is entitled to a “fair and public hearing by an independent and impartial tribunal established by law” (Article 6(1), ECHR).

The Human Rights Act 1998 (HRA 1998) gives effect to this and most other rights under the ECHR (referred to as Convention rights), and makes them enforceable through the UK courts.

Among other things, the HRA 1998 makes it unlawful for a public authority (including public sector employers) to act in a way that is incompatible with a Convention right (section 6(1), HRA 1998). The HRA 1998 does not make Convention rights directly enforceable against private sector organisations or individuals. However, courts and employment tribunals are public authorities (section 6(3)) and must therefore act in a way compatible with Convention rights, and must also interpret legislation in a way that is compatible with Convention rights (section 3(1), HRA 1998; see Do human rights arguments apply to the private sector?).

For further information on human rights generally, and Article 6 in particular, see Practice notes:

• Human Rights Act 1998: overview.
• Human rights law: an introductory guide for government and public bodies.
• Article 6 of the ECHR: right to a fair hearing.
When is Article 6 engaged in disciplinary proceedings?
The key aspects of Article 6 that have come up in an employment context concern whether the employee has a right to legal representation (see Article 6: legal representation), and whether the disciplinary or appeal panel is sufficiently independent and impartial (see Article 6: independent and impartial tribunal). However, neither of these issues fall to be considered unless the employee can establish that the outcome of the proceedings will determine a “civil right” that “engages” Article 6. Case law has established that very few disciplinary proceedings would actually engage Article 6. Indeed, it seems that Article 6 will only be engaged in cases where the outcome of the disciplinary proceedings would “substantially influence” the decision of another body in determining the claimant’s civil rights.

Right to practise a profession and right to a reputation are civil rights engaging Article 6
The European Court of Human Rights has held that the right to practise a profession is a civil right that engages Article 6 (Le Compte and others v Belgium [1981] ECHR 3). That case concerned a decision by the Belgian equivalent of the General Medical Council, to strike the claimant medical practitioners off the register, with the result that they would be legally prohibited from practising medicine.

The right to a reputation has also been held to be a civil right engaging Article 6 (Werner v Poland [2001] ECHR 760).

Disciplinary action by employer does not determine a civil right
The Court of Appeal decided Kulkarni v Milton Keynes Hospital Foundation NHS Trust [2009] IRLR 829 without reference to Article 6. However, Smith LJ made obiter comments to the effect that, while Article 6 would not be engaged where only the loss of a specific job was at stake, it would be engaged where an NHS doctor faced charges which were of such gravity that, if proved, they would effectively bar him from further employment in the NHS. The charges against Dr Kulkarni, a doctor in training, were criminal in nature and, if proved, would have made him effectively unemployable in the NHS. Since he could not complete his medical training outside the NHS, his career as a doctor in the UK would effectively have been at an end. (Legal update, Doctor entitled to legal representation at disciplinary hearing).

NHS doctors in subsequent High Court cases tried without success to establish the right to legal representation in disciplinary hearings based on the obiter remarks of Smith LJ in Kulkarni. The doctors had all retained their GMC registration and were entitled to work in private practice. Mere damage to their career prospects within the NHS was insufficient to amount to a determination of their civil right to practise for the purposes of Article 6. (See R (Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] IRLR 582; Legal update, Doctors’ disciplinary proceedings: impact of Article 6 and right to a fair hearing; Hameed v Central Manchester University Hospitals NHS Foundation Trust [2010] EWHC 2009; Legal update, High Court rules Article 6 not engaged in disciplinary proceedings against NHS doctor.)

The Kulkarni route to Article 6 was effectively closed off by the Court of Appeal in Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] IRLR 661. The court held that the obiter remarks in Kulkarni were not a correct statement of the law. It held that an employer that dismisses an employee is not determining a civil right, but exercising a contractual power. Any civil rights would be determined by a tribunal or court hearing an unfair dismissal or breach of contract claim, or (in the case of a doctor) by the General Medical Council determining his or her fitness to practise. (See Legal update, Dismissal of doctor did not engage article 6 right to fair trial).

Disciplinary findings may have a “substantial influence” on the determination of a civil right
Although (according to the Court of Appeal in Mattu, above) an employer disciplining an employee is not determining a civil right, the Supreme Court has held that Article 6 may nevertheless be engaged where the outcome of the disciplinary proceedings would have a “substantial influence” on subsequent proceedings which determine a civil right. In R (on the application of G) v Governors of X School and another [2011] IRLR 756, a teacher had been accused of having an inappropriate relationship with a child. If this allegation was proven in disciplinary proceedings, the school would have to report him to the Secretary of State. This in turn could lead to (what was then) the Independent Safeguarding Authority (ISA) placing him on the children’s barred list on the basis that he was unfit to work with children. The Supreme Court, agreeing with the Court of Appeal, held that the test was whether the disciplinary proceedings would have “a substantial influence or effect” on the determination of G’s civil right (the right to practise his profession) by the ISA. However, the majority disagreed with the Court of Appeal and held that this test was not met. The ISA would exercise its judgment independently (as required by both statutory provisions and its own guidance notes) both in relation to finding facts and assessing their gravity and significance. Therefore Article 6 was not engaged in the disciplinary proceedings and there was no right to legal representation. (See Legal update, Legal representation at disciplinary hearings.)

The Court of Appeal in Mattu also considered the test laid down by the Supreme Court in G (by which it was of course bound). The court considered that the “substantial influence test” was not met in the case of disciplinary proceedings against a doctor. A court hearing a wrongful dismissal claim, a tribunal hearing an unfair dismissal claim, and the GMC’s Fitness to Practise Panel would all be able to receive evidence and make their own conclusions independent of the employer’s decision.

We are unaware of any reported case in which the substantial influence test has been made out. The Independent Safeguarding Authority (which in 2012 was merged with the Criminal Records Bureau to become the Disclosure and Barring Service), the General Medical Council and the General Social Care Council have all been recognised by the courts as sufficiently independent in their approach not to be so influenced. It would be for the courts to determine whether other regulatory or professional bodies with the power to limit an individual’s professional activities are likely to be substantially influenced by an adverse disciplinary finding. In any event, both Lord Hope in G and Elias LJ in Mattu suggested that the better solution, assuming substantial influence is made out, would be for the regulatory body to be made sufficiently impartial and independent to be Article 6 compliant, rather than to require the employer to make up for those shortcomings.

Article 6: legal representation
Merely engaging Article 6 does not of itself necessarily guarantee the right to legal representation. Although there is an explicit guarantee of a right to legal representation in Article 6(3), this only applies to criminal proceedings. However, in cases involving civil rights, the courts have held that the right to a fair hearing may include a right to bring a legal representative, depending on what is at stake. Broadly speaking, the more serious the allegation or charge, the more astute the courts should be to ensure that the trial process is a fair one. In both Kulkarni and G, the Court held that, assuming Article 6 to be engaged, there would be a right to legal representation where the employee is in essence being accused of serious criminal conduct that could effectively end their career. However, what mattered most was the gravity of the issue in the case, rather than its classification as civil or criminal (G).

It may well be that, if the civil right at issue is serious enough to engage Article 6, a court would be likely to find that the matter is of sufficient gravity to give rise to a right to legal representation. However, there have not yet been enough decided cases to say this with any certainty.

For further information on representation (including legal representation) at disciplinary hearings, see Right to be accompanied.

Role of the lawyer under Article 6
There is as yet no specific guidance on what role a legal representative should be entitled to play at the disciplinary hearing by virtue of Article 6. The claimant in G had initially argued for a specific right for the lawyer to cross-examine witnesses. Although this was not pursued at the Supreme Court, Laws LJ commented (arguably obiter) in the Court of Appeal that:

”I find it difficult to see how a rational disciplinary tribunal could refuse to allow a professional advocate, instructed for the accused party, to ask any questions at all of the complainant if the latter gave evidence before them” ( paragraph 55).

This suggests that, having allowed a lawyer into the hearing, the employer’s refusal to allow them to question witnesses may well be challenged, if not under Article 6, then on Wednesbury unreasonableness grounds in a judicial review case, or as outside the “band of reasonableness” in an unfair dismissal case. For further information on cross-examination of witnesses generally, see Should cross-examination of witnesses be allowed?.

Article 6: independent and impartial tribunal
In Hameed v Central Manchester University Hospitals NHS Foundation Trust [2010] EWHC 2009 a doctor employed by an NHS Trust also argued that Article 6 was engaged when the Trust brought disciplinary proceedings against her. Her case was that her employer’s disciplinary procedure did not comply with Article 6 as it provided for her case to be heard by a panel who, in her view, were not sufficiently independent and impartial. The High Court disagreed, deciding that Article 6 was not engaged because the severity of the allegations did not fall within the type of exceptional case envisaged in Kulkarni (see Legal update, High Court rules Article 6 not engaged in disciplinary proceedings against NHS doctor).

A similar decision was reached in Puri (above). The High Court held that, even if Article 6 had been engaged, there was no need for the disciplinary or appeal panel members to come from outside the Trust. A connection with, or employment by, one of the parties to proceedings does not by itself create bias or even the appearance of bias (Gillies v Secretary of State for Work and Pensions [2006] ICR 267). The added safeguard of judicial review makes the procedure Article 6 compliant, since the court can, in an appropriate case, require a member to stand down where there is an appearance of bias. (See Legal update, Doctors’ disciplinary proceedings: impact of Article 6 and right to a fair hearing.)

Do human rights arguments apply to the private sector?

The cases cited above were unusual in that they were judicial review cases (or in some cases applications for injunctions) against employers in the public sector. The HRA 1998 only binds public authorities, and Article 6 is therefore only directly enforceable against a public sector employer.

However, an employment tribunal (as a public authority) is bound to “read and give effect” to UK legislation “in a way which is compatible with” Article 6 (section 3, HRA, 1998). So while the human rights duties are not directly applicable to private sector organisations, they may yet prove to have some wider influence on the law of unfair dismissal, in the very limited circumstances in which Article 6 may be engaged.