No uniform approach

Statutory disciplinary procedures in regulated professions create a minefield of potential conflicts concerning employees’ rights and the evidence admissible in proving those rights had been breached.

Two such conflicts are particularly topical:
 

• reliance on the conduct/content of statutory disciplinary proceedings to found an employment tribunal (ET) claim; and
• the application of Art 6 of the European Convention of Human Rights (the Convention) to “career-ending” disciplinary proceedings.

It is increasingly common for employees in the regulated professions (doctors, nurses, police officers etc) to attempt supporting ET claims based on what was done or said in statutory disciplinary hearings. Often, this is an attempt to have another bite at the cherry by securing a rehearing in front of an ET. Traditionally, such attempts have been roundly rebutted by invoking absolute judicial immunity, which protects those involved in proceedings (or in their preparation) from liability. However, following the Court of Appeal decision