Labour & European Law Review Weekly Issue 234 08 September 2011
The law states that employers must allow employees to be accompanied by a colleague or trade union official at a disciplinary hearing. The Supreme Court has held in R (on the application of G) v The Governors of X school and Y City Council that even if an employee is dismissed and could lose their right to practice their profession, they do not have an additional right to legal representation at a disciplinary hearing, unless the hearing is likely to have a substantial impact on their right to practice.
Following allegations that he had kissed a 15-year old boy, G (a teaching assistant at the school) was asked to attend a disciplinary interview. The school said he could bring a trade union rep or a colleague to the meeting but not his solicitor.
He was then dismissed and the school reported his dismissal to the Independent Safeguarding Authority (ISA) to decide whether he should be placed on a 'barred' list of people who are banned from teaching children.
G lodged a request for a judicial review, arguing that the internal 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).
Earlier court decisions
The High Court judge rejected G’s arguments that the internal disciplinary proceedings amounted to a “criminal” charge, but agreed that they constituted a “civil” charge. It concluded that he was entitled to legal representation at the internal disciplinary proceedings because his future career within the teaching profession was at stake.
The Court of Appeal agreed. It said that when someone is subject to proceedings at which their civil rights are being decided, article 6 may give them “appropriate procedural rights” if one of the decisions is likely to have a knock-on effect on that right.
In this case, 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 arguments put forward by a professional advocate might have made a difference to the governors’ decision, which in turn might have impacted on the ISA's decision-making.
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.
Supreme Court decision
The Supreme Court, however, did not agree. It held that M’s “civil right” was his right to continue in a profession (teaching) which involved working with children. A decision by the ISA to bar him from that profession would clearly affect his civil rights, meaning that article 6 would apply to the ISA’s proceedings.
However, the internal proceedings at the school were to do with his continued employment, not working with children more generally, and employer’s decision would not substantially influence the outcome of the ISA’s proceedings which were separate and determined by a statutory duty.
As there was no connection between the disciplinary process and the ISA’s procedures, it followed that there was no need for the school to comply with the requirements of article 6. There was therefore no right to legal representation at the internal disciplinary hearing.
However, the Court added that if the first set of proceedings was likely to have an substantial impact on the outcome of subsequent proceedings, then article 6 might well be engaged, meaning that employees would be entitled to legal representation at disciplinary hearings in those circumstances.