This weeks landmark case looks at the decision of the Supreme court in Burns & Hartigan -v- Governor of Castlerea Prison [2009] 20 E.L.R. 109. This case laid down clear guidelines for employment disputes on whether or not an employer should allow legal representation in internal hearings. the case concerned two prison officers who left the prison with the prisoner to escort him to a hospital visit at 10.25am and returned to the prison at 6.25pm that evening. A report showed that the prisoners “business” was completed at 12.40pm. The allegation made was that the length of time in which the prison officers were on the escort was wholly excessive and that they made an inappropriate overtime claim.
Background When disciplinary procedures were initiated the employees requested legal representation which was rejected by the Governor (employer) as prior to the hearing they had been notified in writing that they would not be allowed legal representation as the disciplinary code of practice did not allow for it. (The rules did provide for representation but only from officers with the prison service). The two employees attended the hearing but did not partake because they said there were denied the right to legal representation. The case reached the High court who made an order overturning the penalty determination made against them by the Governor of the prison on the grounds that legal representation should have been provided. The case was referred to the Supreme Court where the Judge asked whether the prison officers should be entitled to legal representation at an oral disciplinary hearing. Summary The high court took the view that the charges were sufficiently serious to warrant legal representation and that in those circumstances the employees should have been entitled to legal representation. The charges against the employees were an unnecessary delay on the departure and intentional delay during the escort. When the case was passed to the Supreme Court the high court decision was set aside, and the court concluded that;
- The absence of reference to legal representation in the rules did not necessarily exclude the right to legal representation.
- Even if legal representation was excluded the constitution might require legal representation in exceptional cases.
- In most cases legal representation would be the exception rather than the rule.
- The governor had discretion under the rules to decide whether in the interest of a fair hearing legal representation was required.
The judge of the Supreme Court found that in this case legal representation was unnecessary as the charges could have been defended without a lawyer. The issues were based on a factual basis connected with the day-to-day running of the prison. The case for which the Governor was obliged to allow legal representation would have been an exceptional case. The judge recognised that in any organisation where there are disciplinary procedures, it is wholly undesirable to involve legal representation unless it affects the principles of constitutional justice. It is a difficult decision to make as to whether legal representation should be allowed. It is important to realise just because the code of practice does not allow legal representation a discretionary decision can be made in exceptional circumstances. The following should be taken into consideration for exceptional situations;
- The seriousness of the charge and of the potential penalty.
- Whether any points of law are likely to arise.
- The capacity of a particular employee to present his own case.
- Procedural difficulties.
- The need for reasonable speed in making the adjudication.
- The need for fairness between the parties.
In this case the judge found that the facts and evidence were clear enough to have a disciplinary hearing without the employees needing legal representation. The sanction was fair for the two employees as they failed to carry out their daily duties. Impact The Supreme Court’s decision in this case is of great significance to employers in the area of employee representation. It is still important for employers to remain cautious around the issue, just because legal representation is not recognised in the code of practice does not mean that it is not allowed indefinitely and some case will be the exception. The Supreme Court ruled in a separate case that when looking at case-law from the European Court of Human Rights they have concluded that it takes “A fact sensitive, pragmatic approach to the right to legal representation” The judge in the Supreme court reiterated that fact that employers need to be aware that some cases can be the exception and there is a possibility that legal representation may be required. It is not possible to give an exhaustive list of examples where legal representation would be allowed. The exceptional cases would normally be if the outcome of the disciplinary could have serious consequences on the individual life such as a ban from a certain profession, as in the UK case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust. Kulkarni was accused in acting inappropriately with a female patient and was appointed representation in the disciplinary however they were not legally trained. Kulkarni sought advice from Medical Protection Society (MPS) and they challenged the fact that he was not allowed a representative to “act in a legal capacity” and that the Trust had the discretion to allow legal representation and the allegations were serious enough to warrant legal representation. The Court of Appealheld that Kulkarni was contractually entitled to be represented at his disciplinary hearing by a lawyer instructed by MPS. The main reason the Court of Appeal allowed legal representation was because the charges Kulkarni faces are of such a serious nature that if proved he will effectively be barred from the NHS and would ultimately face criminal charges with very serious consequences.
