DISCIPLINARY HEARINGS – the right (or not) to be legally represented – AB v University XYZ [2020] EWHC 2978 (QB).

People generally think of disciplinary hearings arising in an employment setting but they can arise in a number of different settings including academic settings and within professional and indeed even in amateur sport.

Disciplinary proceedings can result in grave consequences for the individual; the loss of employment, expulsion from a university course, or suspension from competing in sport.

The longer-term knock-on consequences can be potentially worse than the immediate consequence and so it is natural that a person facing disciplinary proceedings might want to be represented by a lawyer who is experienced in evaluating and challenging evidence, cross-examining witnesses and presenting the individual’s case to an adjudicator.

The right to be legally represented at disciplinary hearings is generally governed by contract.

In the employment setting, and in the absence of a contractual provision to the contrary, the default position is found in s.10 of the Employment Rights Act 1996 : in short, there is no statutory right to legal representation in disciplinary proceedings.

If the contract is silent on the point then it is nevertheless open to the individual to seek permission to be legally represented. More often than not, this request will be refused.

The lack of an express contractual right to legal representation and the refusal of a request to be represented has been the subject of litigation with mixed results.

Previous challenges have generally concerned themselves with human rights, principally Art 6 of the European Convention on Human Rights and the right to a fair trial. Of course, ignoring argument about horizontal/vertical effect, an argument based on the Human Rights Act 1998 is only going to be off assistance to public sector employees.

Another avenue of challenge in the employment context has been the duty of mutual trust and confidence. This was successful in Stevens v University of Birmingham [2015] EWHC 2300 (QB)

But what about disciplinary hearings outside of the employment context?

A recent case heard in the High Court brought by a student who had been subject to disciplinary proceedings saw the matter challenged as a breach of contract and a breach of the rules of natural justice and the duty to act fairly – a common law right.

The judgment in the AB v University XYZ [2020] EWHC 2978 (QB) case is available on BAILII at https://www.bailii.org/ew/cases/EWHC/QB/2020/2978.html).

The matter was heard remotely by Deputy High Court Judge Hugh Southey QC, an eminent public law barrister. The Judgment is impressively structured, setting out the facts, the applicable law and then the conclusions arising from the application of the law to the facts.

For the purposes of this post, I intend to restrict myself only to the issue of representation in the disciplinary proceedings.

As previously mentioned, the right to representation in this case was founded upon natural justice – the duty to act fairly. The duty to act fairly will almost certainly apply to all proceedings of a quasi-judicial character irrespective of context; in other words it is a duty that is likely to extend to all formal disciplinary proceedings in the employment, academic and sporting contexts. It is therefore my opinion that this decision is highly significant.

In AB v XYZ University, the Court proceeded on the basis that previous authority (relied on by the Defendant university) had not considered the issue from the natural justice perspective – see para [86]:

…procedural fairness is a flexible concept that takes account of matters such as the sense of injustice that a person will feel if an unfair procedure is adopted. None of the authorities relied upon by the Defendant appear to me to undermine that conclusion. In particular, in G the manner in which the case was argued meant that the Supreme Court’s finding that article 6 was not engaged was determinative of the claim to be entitled to legal representation. As Laws LJ noted, the courts were not ruling on the common law and Laws LJ left open the possibility that the common law may entitle a person to legal representation. …

Outline Facts in AB v XYZ University:

The Decision.

As foreshadowed, although there were other issues in this case (see para [47]), the following focuses only on the breach of contract/natural justice point.

Having set out the law relating to natural justice (see: paras [56] to [71]), and having previously set out the background facts including the refusal to permit legal representation in the disciplinary proceedings (see: paras [6] to [37]), the Judge gave an analysis of the law as it applied in this particular context (see: paras [83] to [86]) and then applied the law to the facts of the case (see: paras [82], [87] to [94]).

At para [82] the Court observed that the contractual provisions in this specific instance required the Defendant to comply with and abide by the rules of natural justice but the Court further observed that even in the absence of any express contractual provision to do so, such a term would inevitably be implied into the contract (this was common ground between the parties).

The Court observed that the disciplinary hearing in this setting had parallels with the public law context at least in part because the university had the benefit of at least some public funding (see para [83]).

The Court, perhaps having identified the parallels with the public law context, went on to consider and refer extensively to public law cases concerning disciplinary hearings in the prisons setting.

The Court observed that the previous authorities demonstrated that there was no automatic right to legal representation at disciplinary hearings simply because they were disciplinary proceedings (see para [85]).

The Court recognised, however, that there were some cases where fairness would require legal representation to be permitted. The Court dismissed suggestion that previous cases – including authority of the UK Supreme Court – undermined that general proposition (that in the interest of fairness and natural justice the right to representation would arise) and observed that none of the previous cases (where it was found that there was no right to representation) had been decided on this particular issue and none had considered the common law position (see para [86]).

The Court consequently found that the Defendant had fallen into error by relying on the express contractual provision that denied the right to representation and therefore the Claimant had no contractual right to legal representation in the discipline proceedings. The Court observed that there was an overriding duty to ensure natural justice and, where fairness required, there might be a right to legal representation. The Court observed, however, that just because the right to representation had been denied it did not mean that there had been an actionable breach of contract unless it was found – on the facts – that there had been a failure to act fairly giving rise to a breach of natural justice (see para [87]).

The Court identified the appropriate test to be that set out in R v Secretary of State for the Home Department ex p Tarrant [1985] QB 251 (see para [59]) and proceeded to apply that test to the facts of the case.

The Court emphasised that a further important consideration before determining whether or not legal representation is justified at the (first stage) hearing is to look at whether there is a right to an appeal or reconsideration where legal representation was allowed (see para [91]) – that did not apply in this case (i.e. in AB, the appeal hearing – had it been pursued – would still have contractually excluded a right to legal representation).

Having weighed everything in the balance the Court determined that this was a case where the right to legal representation arose (see para [92])

The Court noted that there were procedural safeguards in place to protect the Claimant but those safeguards did not nullify the right to representation (see para [93]).

The Court observed that the Claimant could be criticised for failing to appeal the decision internally but further observed that such an appeal was likely to have been ineffectual given the Defendant’s firm stance on the interpretation of the contract i.e. that there was no right to representation (see para [94]).

A short supplementary judgment followed in the days after circulation of the draft judgment to the parties (https://www.bailii.org/ew/cases/EWHC/QB/2020/2980.html) and this short supplementary judgment sounds a note of caution particularly in respect of costs.

Although the Court accepted that the Claimant had been successful on the principal issue, not all of the arguments that he had advanced had been successful and in fact one avenue of attack had lacked merit and that unmeritorious argument had unquestionably generated additional costs. Additionally, because the Claimant had not engaged with the internal process including the right of appeal, that was also a factor that militated against him and on balance the Court exercised the discretion to limit his claim for costs and awarded the Claimant only 50% of his claimed costs.

It is also clear from the short supplementary judgment that this may not be the end of the matter; the Defendant sought permission to appeal which was refused (see Supp para [4]) but there was an indication that a further application will be made to the Court of Appeal (see Supp para 2(iv) and Supp para [5]).

The Judge considered that the principles were clear and the judgment is carefully reasoned, but given the potential importance of the right to representation and the long-standing questions concerning the right to representation that remain even in the employment context notwithstanding previous CA and UKSC authority (see for example para [12.30], pp.345-346, Selwyn’s Law of Employment, 21st Ed (2020), Astra Emir, OUP), it is not beyond the realms of possibility that the CA will grant permission to appeal in this case.

POINTS OF INTEREST FOR THOSE WHO WISH TO BE LEGALLY REPRESENTED IN DISCIPLINE PROCEEDINGS:

1. A party wanting to avail themselves of legal representation at a discipline hearing should first check whether it is permitted by contract; what does the discipline policy/procedure/rules of the organisation say?
   
2. If the contract/rules are silent on the issue or if they expressly deny the right to be represented by a lawyer – ask for permission. Even in the absence of an express contractual provision the duty to act fairly in discipline proceedings is likely to be an implied term in any event (see para [82]).
   
3. There are strong reasons why it might be desirable to deny legal representation: the danger that the proceedings will become unnecessarily legalistic and drawn out (see para [88]).
   
4. It will not always be contrary to natural justice to deny legal representation at discipline hearings (see para [87]).
   
5. An individual who wants to be legally represented in disciplinary proceedings should articulate clearly the reasons why representation is required. The individual should seek to show that it would be unfair (or at least potentially unfair) to be denied the right to legal representation. This will be fact sensitive (see paras [89]-[92]). Matters that will be important include the seriousness of the charge/s, the individual’s ability to represent themselves in the proceedings along with weighing-up other procedural safeguards built into the system and also consideration of the seriousness of the sanction/s (see test articulated at paras [59]-[60] and applied at paras [90]-[92]). The individual wanting representation will need to make a compelling case as to why they need the assistance of a legal representative, why refusal would be unfair and moreover should be ready to show that the disciplinary timetable can be met and/or that it will not be unduly delayed (i.e. by showing that their intended legal representative is already on-board and up-to-speed).
   
6. It is potentially unwise to simply refuse to engage with the internal disciplinary proceedings even if intending to pursue legal action. Consideration should be given to seeking an early injunction to prevent the discipline process from proceeding until the issue of legal representation is resolved. Alternatively, consideration should be given to engaging with the discipline process under protest. This might be a safer bet from a costs perspective if litigation is to be pursued – e.g. (i) attend the disciplinary hearing, (ii) appeal the outcome on the basis that the procedure was unfair and if still dissatisfied thereafter (iii) bring legal proceedings on grounds of a breach of natural justice (see paras [94], [103]-[104]).
   
7. Above all, keep in mind that not all refusals to permit legal representation will be a breach of natural justice (see para [87]).
   
8. Decision makers considering a request for legal representation even where the right does not expressly exist in the contract/rules should keep in mind the duty to act fairly and to consider the request in the context of the specific circumstances (see the test applied in this case at para [59] of the judgment).