Paramjit Bhogal (aka Paramjeet Bhogal) v National Education Union

Natural justice does not create an automatic right to legal representation in internal disciplinary proceedings. In an exceptional case, however, fairness may require representation despite an express contractual prohibition. The court should assess the particular circumstances, including the seriousness of the charge and penalty, likely legal issues, the person’s ability to present their case, procedural difficulty, delay, and fairness between the parties. Internal disciplinary processes should generally remain speedy and informal. Where an interim injunction is sought, the court applies the American Cyanamid principles. It may also allow the internal appeal to proceed so that the tribunal’s reasoning is available before any later court challenge.

The claimant, a long-standing member of the National Education Union, faced disciplinary proceedings under the Union’s rules. A National Disciplinary Committee found complaints proved and imposed a reprimand, warning and three-year suspension. The claimant appealed to the National Appeals Committee and sought an interim injunction preventing the appeal from proceeding unless he could be represented by lawyers.

The dispute concerned the construction of the Union’s disciplinary procedures, whether natural justice could override an express prohibition on legal representation, whether representation was required on the facts, and whether the Union had waived its right to rely on that prohibition.

1. The application for an interim injunction was dismissed. The claimant failed to establish a serious issue to be tried that natural justice required legal representation at the National Appeals Committee hearing. The balance of convenience would also have favoured allowing the appeal to proceed.
2. The Union’s rules were to be construed as a contractual framework, applying ordinary contractual principles but with regard to their intended readership, purpose, authority, and relevant custom and practice. The reasonable trade union member’s understanding was central.
3. On their proper construction, paragraphs 9 and 25 of the Disciplinary Procedures applied throughout the disciplinary process, including appeals. They permitted assistance by a union-member friend or companion and did not permit legal representation. There was no basis for implying a contrary term.
4. Natural justice may nevertheless require legal representation in an exceptional disciplinary case, notwithstanding an express contractual prohibition. The relevant assessment includes the seriousness of the charge and penalty, likely points of law, the person’s capacity to present their case, procedural difficulties, the need for expedition, and fairness between the parties. There is no blanket right to representation.
5. Those factors did not support representation here. The allegations and sanction were not exceptionally serious; the claimant was highly educated and capable of presenting his case; the legal and procedural issues were not unusually complex; and written submissions could address the points relied upon. The Union’s process was lay-led and separated the prosecuting function from the appeal panel.
6. The claimant had no real case that the Union waived the prohibition merely by accepting grounds of appeal drafted by lawyers. The balance of justice also favoured completion of the internal appeal, enabling any subsequent court challenge to benefit from the National Appeals Committee’s reasoning.