Disciplinary proceedings: Legal representation at public sector internal disciplinary hearings

In R (on the application of G) v Governors of X School, the Supreme Court (formerly the House of Lords)  considered that G’s employer did not infringe his right to a fair hearing under Article 6 of the European Convention on Human Rights, when it did not permit him to be legally represented at an internal disciplinary hearing since the effect of the internal proceedings would not have a substantial enough influence on any subsequent proceedings. Summary of the case

G worked as a music assistant at a primary school.  He was dismissed for kissing a 15 year old child.  G was not allowed by the school to have legal representation at the disciplinary hearing.  He argued that this infringed his right to a fair hearing under Article 6 of the European Convention on Human Rights and therefore sought judicial review of the decision.  This matter has been considered by the High Court, the Court of Appeal and now the Supreme Court.  The Supreme Court considered that the following test should be applied when determining whether Article 6 is likely to be infringed: • Whether the decision in one set of proceedings (in this case an internal disciplinary hearing) is capable of being used to determine civil rights which are to be determined in another set of proceedings, or of at least causing irreversible prejudice by partially determining the outcome of those proceedings;

• How close the link is between the two sets of proceedings;

• Whether the object of both proceedings is the same; and

• Whether there are any policy reasons for holding that Article 6(1) should not apply to the internal set of proceedings.

In this case, the outcome of the proceedings was to be reported to the Independent Safeguarding Authority who would in turn determine whether or not G was fit to work with children.   If barred from the ISA list, he would not be able to continue working as a teaching assistant or with children.  However, the Supreme Court considered that the outcome of the disciplinary proceedings would not have a substantial influence or effect over the ISA proceedings.  This was because the ISA must, by statute, make an independent judgment of the facts and an assessment of the gravity of the situation.   It appears that the bar is now set relatively high.  However, ultimately each case will need to be considered on its own facts.What does this mean?

Article 6 of the ECHR will only apply directly to public sector employees.  However, private sector employees may also argue that they should be legally represented at internal hearings, particularly if the outcome of the hearing could prevent them from working in their chosen profession in the future (for example if the individual is regulated by a body such as the FSA or the Law Society).  Preventing the employee from being legally represented could in some cases go towards the unfairness of the dismissal.  However, this should be balanced with the fact that offering legal representation could create a precedent and increase costs, particularly if the employer wishes to be legally represented as well.   If the situation arises, it would be sensible to take legal advice before making the decision either way.  This judgment has been criticised by some, including one of the Law Lords who dissented from the judgment.  Therefore it is unlikely that this is the last we will hear on the matter.