Breach of trust

R (on the application of G) v The Governors of X school and Y City Council

The law states that employers must allow employees to be represented by a colleague or trade union representative at a disciplinary hearing. The High Court has held in R (on the application of G) v The Governors of X school and Y City Council that, in certain circumstances, employees also have the right to be represented by a lawyer.

Basic facts

G was employed as a music assistant at X school until his dismissal on 27 February 2008 for allegedly kissing a 15-year old pupil called M and sending him two text messages suggesting that they meet.

After being suspended, the school asked G to attend an investigatory interview at which he had the right to be represented by either a trade union representative or a colleague. He wrote back saying he had been advised not to attend until the police had finished their investigations. By early February it was clear that criminal charges would not be pursued, at which point the school asked him to attend a disciplinary interview on 21 February.

It also made clear to him that it had a duty to report him to the Secretary of State for Children Schools and Families to determine whether he should be prohibited from working with children in educational establishments under article 142 of the 2002 Education Act.

G’s solicitors then asked to be allowed to represent him at the hearing, explaining that he was a part-time, casual member of staff and not a member of a trade union. As the potential outcome could disadvantage him for the rest of his life, they argued that it would be a breach of his human rights not to be represented. The school refused and he was dismissed.

G’s request for judicial review

G lodged a request for a judicial review on the basis that:

• The school’s refusal to allow him legal representation at the internal hearing and the decision to refer him to the secretary of state under section 142 were so serious as to constitute a “criminal charge against him” within the meaning of article 6 of the European Convention on Human Rights, thereby entitling him to additional procedural protection under articles 6(2) and 6(3)
  Alternatively, if the disciplinary proceedings could not constitute a "criminal charge", they constituted “the determination of his civil rights and obligations" under article 6(1) and he was entitled to legal representation to protect those rights

High Court decision

The judge rejected G’s argument that the internal disciplinary proceedings amounted to a “criminal” charge because the purpose of section 142 was “preventative and protective and not punitive, even though its effects upon the Claimant, and indeed, any person are likely to be very serious”.

However, although the standard was therefore a civil, not a criminal one, the court said that it accepted G’s alternative submission that “by reason both of the serious nature of the allegations of misconduct and the severity of the consequences” of a section 142 direction he was entitled to “a commensurately enhanced measure of procedural protection”.

The judge concluded that “In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant's future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient”.

The school has been granted permission to appeal to the Court of Appeal. Likewise G has been given permission to cross appeal on the Article 6(3) criminal point.