Posted: Wednesday 29 June 2011
Supreme Court Decision on Legal Representation at Disciplinary Hearings
Last year, I commented upon the Court of Appeal’s decision in G v X School, where the Court held that the teacher in that case should have had the opportunity to be legally represented at disciplinary hearings, in accordance with Article 6 of the European Convention of Human Rights (the right to a fair trial). The Supreme Court has now overturned this decision, holding that in the particular circumstances of this case, the claimant was not entitled to legal representation at the school’s disciplinary hearings.
As I explained in my earlier blog, the claimant in G v X School was a teaching assistant who had allegedly kissed a 15 year old boy. The Crown Prosecution Service did not prosecute him in the criminal courts. However, he was subjected to disciplinary proceedings by the school governors. The governors refused his request to be legally represented throughout the disciplinary hearing. G was dismissed and his name passed to the Independent Safeguarding Authority (“ISA”) to consider whether or not to include him on a list of persons barred from working with children.
The Court of Appeal decided that, given the right to practice a profession is a civil right, the disciplinary hearing was determinative of that civil right (in that the ISA would subsequently take into account the hearing’s findings) and therefore Article 6 was engaged. Article 6 is not engaged in dismissal cases generally.
The majority of the judges hearing the case in the Supreme Court disagreed (one judge agreed with the Court of Appeal) with this analysis, though. The leading judgment was given by Lord Dyson, who said that there is “no reason to suppose that the ISA will be influenced profoundly (or at all) by the school’s opinion…”. In other words, given the ISA (and not the school) was the independent authority with the right to determine whether or not the claimant’s name would be placed on the “barred list”, Article 6 was not engaged in relation to the school’s own disciplinary procedures.
So does this judgment therefore mean the law reverts to where it was before this case arose? Well, the short answer is no! It remains the case that Article 6 is not engaged in dismissal proceedings, but is engaged when a person’s civil rights are being determined. The difference here was that the school disciplinary procedures were not determinative of the claimant’s civil rights, according to the Supreme Court. The ISA is independent to such an extent that it could have taken a different view from the school and not included the claimant’s name on the barred list.
Employers therefore still need to be aware of this issue and carefully consider whether to agree to allow legal representation to attend if there is the possibility of an employee’s civil rights being determined.
