The Supreme Court (by a 4:1 majority) has allowed an appeal by The Governors of X School, overturning the Court of Appeal’s decision that a teaching assistant’s rights under Article 6 of the European Convention on Human Rights  had been breached by the school’s decision to prohibit legal representation at an internal disciplinary hearing.

For more detailed information on the facts of the case, see our case preview.

The principal question raised in this appeal was:

“. . . what kind of connection is required between proceedings A (in which an individual’s civil rights or obligations are not being explicitly determined) and proceedings B (in which his civil rights or obligations are being explicitly determined) for article 6 to apply in proceedings A as well as proceedings B…” (per Lord Dyson at para. 35)

The Supreme Court agreed with the Court of Appeal on the appropriate test to be applied in determining whether Article 6 is engaged in the course of an internal disciplinary procedure.  If the disciplinary proceedings, whilst not being determinative of an individual’s civil rights or obligations (in this case, G’s “right to practise his profession as a teaching assistant and to work with children generally” – per Lord Dyson at paragraph 33), will have a “substantial influence or effect” on the outcome of a subsequent process which is determinative of civil rights (in this case, the Independent Safeguarding Authority’s barring procedure), then Article 6 may (although not necessarily will) be engaged at both stages.

Lord Dyson emphasised that the “focus should be on the substance of the matter”, and that “The Court should always keep in mind the importance of ensuring that the guarantees afforded by Article 6 (1) are not illusory” (para. 69).

The majority of the Supreme Court disagreed, however, with the Court of Appeal’s application of the “substantial influence of effect” test.  In its view, the ISA was required by statutory provisions and published guidance to “exercise its own independent judgment both in relation to finding facts and making an assessment of their gravity and significance”, before forming a view as to whether G should be placed on the barred list (per Lord Dyson at para. 75). Lord Hope stated:

“They [the ISA] must make their own assessment of the reliability of the evidence.  They are not judging the case at second hand.  Their concern is with the primary facts of the case, not with any conclusions that the governors may have formed about them…I think that we can be confident that the governors’ view of the facts will have receded far into the background when the time comes for a decision as to whether the person should be included in the children’s barred list…” (para. 92).

In essence, the Supreme Court concluded that there was no reason to believe that the ISA would be incapable of forming its own conclusion on the material questions, independent from the factual findings and conclusions of the school governors.  The fact that the ISA did not operate a procedure for oral hearings with cross-examination of witnesses did not, in the Supreme Court’s view, prevent it from carrying out this task effectively.

The Supreme Court considered that the governors’ determination that G had been guilty of gross misconduct would not have a “substantial influence or effect” on the ISA’s decision making process.  It followed that G’s Article 6 rights were not engaged at the internal disciplinary stage, but only at the subsequent ISA hearing.

In allowing the appeal by X School, Lord Brown also highlighted the “stark anomaly created by the decision below as between public sector and private sector authorities” (para. 100).  In his view, “Were a similar situation to arise…in a private school – which would require a precisely similar report to the ISA pursuant to section 35 of the 2006 Act – there could be no question of article 6 applying to the internal disciplinary process”.  In such circumstances, Lord Brown considered that any Article 6 challenge would have to be founded upon a contention that the ISA scheme itself was incompatible with Article 6.  The “difficult issues” (per Lord Dyson at para. 85) surrounding the “curative” or “full jurisdiction” principle – i.e. whether a defective process may be cured by a right of appeal to the Upper Tribunal or an application for judicial review – did not arise for determination on the facts.

Interestingly, Lord Dyson did accept that “there may occasionally be a case where the critical factor which leads an employer to find that there has been gross misconduct by an employee is the demeanour shown by the employee when giving his or her account to the disciplinary panel” (para. 81).  Accordingly, it may be possible to argue that in this limited class of cases, the absence of any opportunity for cross-examination in proceedings B would (in order to ensure proper compliance with Article 6 (1)) require an employer to permit legal representation in proceedings A.  However, given the thrust of the Supreme Court’s conclusions on the independent decision-making power of the ISA in this case, provided these powers are exercised diligently (i.e. without undue reliance being placed on the finding(s) and/or conclusion(s) reached in proceedings A), such an argument is in our view likely to encounter significant difficulties.

In a powerful dissenting judgment Lord Kerr considered that the ISA’s decision in the barring procedure would inevitably be affected by the governors’ report on the allegations.  At para. 106 of the judgment, he stated:

“It seems to me to be entirely open to ISA to pay close attention to the findings of the disciplinary tribunal and indeed to be substantially influenced by them, so long as it keeps faith with the requirement that it reach its own independent view of the facts… Why should the findings of the panel and the account of the evidence given not have a substantial influence on ISA’s conclusions? It seems to me to border on the perverse to suggest that they would not have such an influence . . .”

He went on to state at para. 108:

“. . . All of the material from that [internal] hearing which touches on the truth of the allegations made against [G] is relevant and, for my part, I would find it surprising, indeed reprehensible, if the case workers of ISA did not pay the closest attention to that material in reaching their conclusion on the facts.”

Accordingly, in Lord Kerr’s view, Article 6 (1) required that G should have been permitted legal representation by the school governors at the internal disciplinary hearing.  He further emphasised the importance, in order to achieve an Article 6 compliant process, of ensuring that legal representation is permitted “…where it can be best deployed not only to best effect but also to achieve a real and effective contribution to the fairness of the proceedings…” (para. 110) This included not only the benefit of cross-examination by a professional representative, but also “advising that person on how to participate in the proceedings, as well as introducing relevant further evidence that may have a crucial impact on the forming of the first views on the factual issues . . . ”

Lord Kerr did address the question of whether what was (in his view) a defective procedure could be “cured” by the availability of an appeal to the Upper Tribunal.  He concluded that it could not (para. 119).