Right to teach

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 accompanied by a colleague or trade union official at a disciplinary hearing. The Court of Appeal has held in R (on the application of G) v The Governors of X school and Y City Council that, in certain circumstances, employees whose professional careers are at stake, also have the right to be represented by a lawyer.

Basic facts

G, a teaching assistant at X school, was accused of kissing a 15-year old boy. Once it became clear that criminal charges would not be pursued, the school asked G to attend a disciplinary interview on 21 February at which he was told he had the right to be represented by either a trade union representative or a colleague.

G’s solicitors 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 allow him legal representation.

The school refused and he was dismissed. It also reported his dismissal to the Independent Safeguarding Authority (ISA) to decide whether he should be placed on a 'barred' list of people who are not allowed to teach children.

G lodged a request for a judicial review, arguing that disciplinary proceedings and the ISA referral were so serious as to constitute either a criminal or civil charge against him, and the refusal to allow legal representation infringed his right to a fair trial under article 6 of the European Convention on Human Rights (ECHR).

High Court decision

The judge rejected G’s arguments that the internal disciplinary proceedings amounted to a “criminal” charge, but agreed with his alternative argument that they constituted a “civil” charge.

It concluded that because of the serious nature of the allegations he was entitled to “a commensurately enhanced measure of procedural protection”, which meant that he was entitled to legal representation at the internal disciplinary proceedings because his future career within the teaching profession was at stake.

Court of Appeal decision

The Court of Appeal agreed. It said that when someone is subject to two or more sets of proceedings (or even phases of a single proceeding), at which their civil rights are being decided, article 6 may sometimes (but not always) give them “appropriate procedural rights” if one of the decisions is likely to have a knock-on effect on that civil right.

In this case the Court said that the civil right was M’s right to teach. As the ISA procedure (at which his right to practise his profession was directly at stake) might be irretrievably prejudiced by the outcome of the disciplinary proceedings, M could rely on article 6 for protection.

Although it did not automatically entail a right of legal representation against a “civil” charge, the Court decided that a professional advocate might have made a “great deal of difference to the flavour and the emphasis [at the hearing]; and if there were any contest as to the primary facts, to that also. And if an advocate might have effected such a difference before the governors, then the influence of their conclusions on the ISA's decision-making might also have been different.”

It concluded that as the school's disciplinary proceedings would have a "substantial influence or effect" on the decision-making of the ISA, G was entitled to legal representation at the internal disciplinary and appeal hearings.