Employment Law News

Legal representation at disciplinary hearings - Matt Smith

The Court of Appeal has now handed down its decision in the case of R (on the application of G) v The Governors of X School and another, upholding the High Court's finding that a teacher was entitled to legal representation at a disciplinary hearing.

The Facts

The Claimant was a teaching assistant at X school. A complaint was made that he had kissed and had sexual contact with a 15 year old boy, who was undertaking work experience at the school.

The Claimant was subjected to disciplinary proceedings as a result of the complaint. The Claimant requested that he be allowed to have a legal representative at the disciplinary hearing to take place on 21st February 2008. UK legislation only obliges employers to allow employees to be accompanied by a Trade Union representative or colleague at a disciplinary hearing, and the governors of the school duly replied that he could not be accompanied by a legal representative.

On 27 February 2008 the governors wrote to the Claimant to advise him that he had been dismissed, and also stated that they were concerned that he had behaved in a way that indicated that he might not be suitable to work with children, and as such they would be reporting the dismissal to the 'appropriate agencies'.

The Claimant appealed on 4th March 2008 and on 6th March the governors confirmed that legal representation would not be allowed on appeal. The Claimant brought judicial review proceedings challenging that decision. The appeal was suspended pending the outcome of the judicial review proceedings.

If the school were to report the Claimant's conduct to 'appropriate agencies' (at the time the Secretary of State, now the Independent Safeguarding Authority) then this could result in the Claimant being placed on a list of persons prevented from working with children. The Claimant would have a right of appeal to the Upper Tribunal if ISA decided to place him on the child barring list, but only on the grounds that ISA had made a mistake as to law or fact. There would then be a further right of appeal to the Court of Appeal on a point of law only.

The Decision

The Court of Appeal held that the disciplinary process was determinant of the claimant's right to practice his profession because there as a sufficiently 'close nexus' between the disciplinary process and the child barring procedure. i.e. the former substantially influenced the latter. Accordingly, as the determination of the Claimant's civil rights was at stake, he was protected by Article 6 of the European Convention on Human Rights.

The second question then was whether Article 6, once engaged, required that the Claimant be allowed legal representation in the disciplinary procedure. The Court of Appeal held that the level of legal protection afforded by Article 6 in relation to civil rights (rather than criminal rights) depended on what was at stake. The Court of Appeal found that, in the present circumstances, the Claimant's right to practice his profession was at stake and an advocate could have a significant effect on disciplinary proceedings, and accordingly, Article 6 required that the Claimant be allowed legal representation.

The Effect

In most cases employers do not need to afford employees more than their minimum right to be accompanied to a disciplinary hearing by a trade union representative or colleague. Employers sometimes allow the employee to be accompanied by someone other than a colleague or trade union representative where this will ensure reasonableness in the disciplinary procedure .e.g. where it is necessary to allow a family member or friend to attend in order to allow the employee to overcome a difficulty with understanding English or a disability. But employers will usually draw a line at legal representation as this can cause the process to become litigious.

This decision then need not worry the majority of employers, but it will be of concern to those employers with employees who could be barred from their profession as a result of any disciplinary finding. For example, care providers concerned with the protection of vulnerable adults, the NHS, or any organisation responsible for children such as schools, charitable organisations etc.

The problem facing employers is that the test for deciding whether or not a legal representative should be permitted to attend a disciplinary hearing is not clear cut. The employer will have to decide whether the disciplinary process will have a substantial impact on the employee's ability to practice their profession. This will vary from organisation to organisation and possibly also on a case to case basis, leaving employers open to legal challenge if they do not allow legal representation.

For more information about Employment Law issues please contact our specialist Employment Law team on 0151 647 9381.

Matt Smith

This article provides a summary of a recent case/change in law/news item. It is intended for general information purposes only and is not to be relied upon. It does not constitute legal advice and should not be treated under any circumstances as a substitute for legal advice. Lees Solicitors LLP does not accept any responsibility for any loss that may arise from reliance upon the information contained within this article. The copyright in this article is owned by Lees Solicitors LLP and permission must be sought before reproduction or publishing.

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