Disciplinary procedures and the right to a fair hearing

A recent Court of Appeal ruling on the relationship between disciplinary procedures and Article 6 of the ECHR (the right to a fair hearing) is welcome news for public sector organisations, says Michael Stokes.

Since the Court of Appeal's judgment in Kulkarni v Milton Keynes Hospital Foundation NHS Trust [2009] IRLR 829, lawyers advising public sector clients have been well aware of the possibility that employees might be entitled to legal representation and other procedural protections in internal disciplinary proceedings. However, that right might be severely limited following another recent Court of Appeal decision.

In Mattu v University Hospitals Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641, the Court of Appeal was asked to consider whether Article 6 of the European Convention on Human Rights was engaged in disciplinary proceedings that led to Dr Mattu being dismissed for gross misconduct. The Convention has been largely incorporated into UK law by the Human Rights Act 1998. Under Article 6 a person has a right to a fair hearing in relation to the determination of civil rights, including the right to an "impartial tribunal". Existing case law has already confirmed that the right to pursue a profession is such a civil right.

In Kulkarni the employee was a doctor in training, with (as it turned out) a contractual right to have legal representation in his disciplinary hearing. However, the Court of Appeal went on to comment on the position had he not been so entitled under his contract of employment. Whilst it was not necessary to consider the issue in that case, the Court said that when the charges against an NHS doctor were so serious (and were characterised as effectively criminal charges) that, if proven, they would effectively prevent the doctor from obtaining employment in the NHS, Article 6 came into play and the doctor should be entitled to legal representation.

The Facts in Dr Mattu's Case

Dr Mattu worked as a Consultant Cardiologist for UHCW NHS Trust. He was suspended from work in 2002, for disciplinary reasons completely separate from the reasons for his eventual dismissal, only being able to return to work in 2007. Given the length of time Dr Mattu had been away from work, he and the Trust agreed that a period of re-skilling was necessary. However, there was a failure to agree exactly what that re-skilling should entail – Dr Mattu had a period of 'academic re-skilling' in the USA in mind, whilst the Trust were more concerned with him returning to his role at the hospital as a Consultant Cardiologist.

Eventually the Trust began disciplinary proceedings over what it took to be a wilful failure to engage with the re-skilling process. Dr Mattu also faced allegations of misrepresenting the severity of his illness and disclosing confidential information. The matter was considered at a disciplinary hearing and Dr Mattu was found to have been guilty of gross misconduct. He was dismissed without notice.

What had all that to do with Article 6? In essence, Dr Mattu was arguing that he was in a similar position to that of Mr Kulkarni, and that if the charges against him were upheld by the Trust, he would effectively be prevented from obtaining employment. His argument followed that the disciplinary procedures adopted by the Trust should have been Article 6 compliant. That would have meant that the individual manager who had dealt with the disciplinary hearing would have to amount to an "impartial tribunal". Both the High Court and the Court of Appeal had found that the individual manager in Dr Mattu's case was not such an "impartial tribunal".

The Court of Appeal rejected Dr Mattu's Article 6 argument. It unanimously held that the decision of an employer to dismiss an employee for gross misconduct was the determination of a contractual right, not of a civil right as required by Article 6.

The Court went on to say that if they were wrong, and a civil right was determined by an internal disciplinary procedure, any breach of Article 6 could be cured by a tribunal or court that had, as Elias LJ put it, "full jurisdiction". In this case, a court hearing a wrongful dismissal claim, a tribunal hearing an unfair dismissal claim, and the GMC's Fitness to Practise Panel all had full jurisdiction over the facts and were Article 6-compliant.

Mattu is reassuring for all public sector employers worried about the escalating costs and attendant delays involved in attempting to make a disciplinary procedure 'Article 6 compliant' whether by allowing involvement of legal representatives or, as in this case, by having to provide an independent and impartial disciplinary panel. However, the judgment does not close the door on these requirements altogether. As suggested by the Supreme Court in R(G) v Governors of X School [2011] IRLR 756, if an internal procedure is likely to have a substantial influence or effect on the subsequent determination of the employee's civil rights, Article 6 would be engaged. That is unlikely to be relevant where a regulatory body, considering at a later point issues already considered by the former employer, uses its own independent and robust fact-finding and decision-making procedure.

In other words, if there is at least one more Article 6-compliant procedure between an employee and professional oblivion, a public sector employer dealing with an internal disciplinary procedure does not necessarily have to provide an internal procedure that can itself pass the Article 6 test.

Michael Stokes is a partner at Harrison Clark, which acted for the NHS trust in the Mattu case. He can be contacted on 01905 746474 or by This email address is being protected from spambots. You need JavaScript enabled to view it..