Is it unfair for a Claimant to not be permitted legal representation during an internal appeal hearing?
Not necessarily, says the Employment Appeal Tribunal (“EAT”) in Ministry of Justice v Parry, unless the circumstances fall within an exceptional class of case in which the decision to dismiss from employment is also a decision which creates a legal barrier to the employee working again in their chosen profession.
The Claimant was a District Probate Registrar and had a final written warning for gross misconduct, namely bullying and harassment. Further similar complaints were made within the currency of the warning. The complaints were upheld and the Claimant summarily dismissed. The Claimant asked if she could be represented by solicitors at her appeal. The request was declined but written submissions were prepared and considered by the Respondent.
Kate Fretten, Employment Partner, says “The EAT had to consider whether legal representation at the appeal was mandated and if so would a dismissal in the absence of such an opportunity be necessarily procedurally unfair. The EAT was referred to a number of authorities which demonstrated that a pragmatic, context-sensitive approach needed to be adopted.”
The EAT recognised that there was a contractual right to dismiss an employee but in some circumstances this decision could impact on an employee’s broader civil rights: whether they could continue to work not simply in their role but in their chosen profession. In these circumstances where the employee’s civil rights were engaged the guarantees provided by Article 6 of the European Convention on Human Rights must be observed. This was essential whether or not the decision regarding practice in their chosen profession would be taken at a later date by an external body. If there is a sufficient link between the internal proceedings and the determination of the employee’s right to continue in their profession, Article 6 is engaged.
For a free initial meeting please call 01202 499255 and Kate or Paul will be happy to discuss any questions you may have.
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