The Kulkani Case
Traditionally in employment disciplinary proceedings, practitioners have been reliant on support from their union and/or a colleague to assist them. Issues can arise on the basis of what would be regarded as traditional misconduct or professional performance and the procedure followed is normally integrated in some way to the employee’s contract. Organisations normally have a separate policy that sets out the process for investigating a complaint which can culminate in a formal disciplinary hearing.
In the recent case of Kulkani v Milton Keynes Hospital NHS Foundation Trust, the Court of Appeal considered the issue of legal representation at disciplinary proceedings involving a doctor. Dr Kulkani was a Foundation Year 1 doctor who shortly after starting work, was suspended by the Trust following a serious complaint by a female patient. The doctor was a member of the MPS and as such, was assigned a representative to assist him in the disciplinary process. The representative was not legally qualified and the MPS enquired whether Dr Kulkani could have legal representation at his disciplinary hearing. The request was refused and the position of the Trust was that their procedures did not allow it and anyone companying Dr Kulkani must not be acting in a legal capacity. An application was made to the Administrative Division of the High Court.
The Kulkani Case
At first instance, the Trust was challenged on the basis the Trust should have exercised its discretion in this case under an express or implied term in the contract of employment and secondly, there was a breach of Article 6 which the Trust had a duty to comply with as a public sector employer. The High Court held that there was an express term in the contract of employment that prohibited legal representation at disciplinary hearings. Therefore there could be no implied term that provided the Trust with a discretionary power.
Perhaps more significantly, in relation to the Article 6 point, the Court determined that even if this Article was engaged, any subsequent proceedings before the General Medical Council (GMC) and/or the Employment Tribunal meant that the proceedings taken as a whole would be compliant with the Convention rights. This was a clear failure by the Court in properly understanding the role of the GMC and the Employment Tribunal. Perhaps unsurprisingly, Dr Kulkani appealed to the Court of Appeal.
The Court of Appeal held that the doctor’s contract of employment had to be viewed objectively. They determined that the doctor did have the right to be represented by a legally qualified person employed or instructed by the MPS. Under the employment contract he was not permitted to bring an independently instructed, legally qualified person unless they were a spouse/partner, friend or work colleague.
Their decision meant that they did not need to go on to consider the Article 6 point. However, they did deem there to be sufficient public interest in this issue and made the following points:
- A distinction must be made between proceedings where the most that is at stake is the loss of a specific job and those where an employee could be deprived of the right to practice his profession. Where the latter situation applies, Article 6 is engaged.
- In this case, the doctor faced allegations of a criminal nature as part of the disciplinary proceedings. The Court recognised that although the consequence of the allegation being proven would not lead to imprisonment; they recognised such a finding could be very serious. Therefore they determined in these circumstances there is an implied right to legal representation in civil proceedings.
- Clearly the issue of an express term in the contract, prohibiting legal representation could be problematic for employers. However the Court was clear that this did not prevent an employer waiving the provision where the circumstances justify it.
This case does not provide authority for an automatic right to be legally represented at disciplinary hearings. Medicine is regulated stringently; an adverse outcome at a disciplinary hearing can lead to alert letters being issued and in some cases an interim suspension while the matter is investigated by the GMC. This can leave a doctor unable to carry out any work that requires registration with the GMC. It is evident in these circumstances the doctor’s Article 6 rights are engaged. If a request for legal representation is made, the Court of Appeal stated “an employer who receives such a request would be well advised to give it fair consideration and…bear in mind the possibility that denial of full rights of representation might be held to be a breach of Article 6.” Given the wide ranging implications of this judgement, it is unsurprising that the decision has been appealed and will be considered by the new Supreme Court.
The MedicAssistanceScheme panel of legal advisors at Richard Nelson Solicitors are experienced in making representations to employers about the right to be legally represented. We have provided advice to healthcare professionals who find themselves subject to investigation and/or formal disciplinary proceedings. Our experience in dealing with the various regulators also ensures that we can protect your position in the event of any subsequent or parallel proceedings that may be brought by the regulator. Since Kulkani we have provided support and representation at disciplinary proceedings.
If representation is sought at an early stage, your interests are protected in the event the matter is referred to another authority. We are also able to test and analyse evidence presented by the employer and assist in the presentation of any mitigation that may be relevant.