The Court of Appeal has recently upheld an employee’s right to legal representation during disciplinary proceedings, in view of the gravity of the allegations and the potential impact on his future career.
Employment solicitor Sasha Lormant comments:
Last year we reported the case of R (on application of G) v The Governors of X School and Y City Council, a High Court decision relating to a teaching assistant who was dismissed for actions of gross misconduct when it was alleged he had kissed a 15 year old student (see our previous briefing).
The teaching assistant was denied legal representation at the internal disciplinary hearing which led to his dismissal. The school had an obligation to report the dismissal to the Independent Safeguarding Authority (ISA). The ISA could decide whether to bar the teaching assistant from working with children if it found him to be unsuitable to work with children.
The teaching assistant brought court proceedings to challenge the decision of the school governors not to allow him legal representation at the disciplinary hearing. The High Court held that the teaching assistant was entitled to legal representation at the disciplinary hearing under Article 6 of the European Convention on Human Rights, which provides for a right to a fair trial.
The Court of Appeal (CA) has now upheld the High Court’s decision. It agreed that the outcome of the disciplinary hearing had a substantial impact on the teaching assistant’s civil right to practice his profession, because it would influence the ISA in deciding whether to ban the assistant from working with children.
However, whilst the CA confirmed the High Court’s decision, it did so on different grounds. The CA held that it was the ‘close connection’ between the disciplinary hearing and the ISA’s decision to bar someone that triggered the Article 6 right to legal representation. Unlike the High Court, the CA did not hold that the disciplinary proceedings and the ISA decision had to constitute a ‘single procedure’.
Comment
This case does not go as far as establishing a right to legal representation at all disciplinary hearings. The nature of the employee’s job and the allegations made against the employee must be considered before the employer grants such a right. For instance, if a doctor or teacher is being disciplined for actions of gross misconduct against a patient or pupil, then the outcome of the disciplinary proceedings will heavily influence the relevant authority in deciding whether the employee can continue in his or her job. The right to legal representation during the disciplinary proceedings will then become essential because of the seriousness of the allegations and the consequent effect on the employee’s future career.
Click here for a copy of the judgment.