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In what circumstances, if any, should an employee (if he/she so wishes) be permitted legal representation (as opposed to, for example, assistance from a trade union official or work colleague) at an internal disciplinary hearing?  That is the important question which is soon to be decided by the Supreme Court in this case.

The facts in brief

The claimant was employed by X School (a primary school) as a teaching assistant. He was accused of kissing and having sexual contact with a 15-year old boy, who was undergoing a period of work experience at the school. These accusations resulted in the claimant being suspended and disciplinary proceedings being instituted by the school. The CPS elected not to bring criminal proceedings against the claimant.

The claimant requested that he be allowed legal representation at the disciplinary hearing before the school’s governors. This request was refused, on the basis that the school’s disciplinary policy only provided for accompaniment by a work colleague or union representative.

The disciplinary committee found that the allegations were substantiated and summarily dismissed the claimant.

Having made such a serious finding of misconduct, the school was obliged (pursuant to statutory provisions) to make a reference to the Secretary of State for him to consider whether the claimant should be barred from working with children in the future. In the event that such a direction was made, a right of appeal to the First-Tier Tribunal was available.

The statutory framework for child protection was subsequently amended, such that the newly established Independent Safeguarding Authority (“the ISA”) assumed responsibility for deciding whether the claimant should be placed on the “children’s barred list”.  Under this statutory framework, the claimant would have a right to legal representation before the ISA; and if dissatisfied with its decision, there was a right of appeal to the Upper Tribunal.

The claimant appealed the decision of the school’s disciplinary committee to the appeal committee of the school’s governors. Once again he requested permission to be legally represented at the hearing, but this was refused.

The claimant therefore brought judicial review proceedings, alleging that the disciplinary proceedings were unfair and constituted a breach of his rights to a fair hearing under Art. 6 ECHR. His appeal to the appeal committee of the school’s governors was stayed, pending the outcome of the civil proceedings.

The decision of the High Court

Mr Stephen Morris QC, sitting as a deputy, held that the internal disciplinary proceedings involved the determination of a civil right (as opposed to a criminal charge), but that the claimant was nevertheless entitled to be legally represented. Having considered the position under the ‘old’ statutory framework, the Judge concluded that the opportunity to make representations to the Secretary of State, taken together with a route of appeal to the First-Tier Tribunal, did not provide the claimant with sufficient procedural protection to satisfy the requirements of Art. 6

The Court of Appeal decision

On the first question, namely whether the disciplinary proceedings amounted to a determination of the claimant’s right to practise his profession (for the purpose of Art. 6), the CA held that they did.

Laws LJ said at paragraph 47: “…It seems to me that there is every likelihood that the outcome of the disciplinary process in a case like this, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making procedures relating to the barred list…” (emphasis added).

The governors had made a finding of fact that the alleged misconduct was proven, and had indicated very clearly their view as to the seriousness of that misconduct. Accordingly, without a complete rehearing before the (newly established) ISA, including the possibility of oral evidence and cross-examination of witnesses, Laws LJ considered that “at the very least the flavour and emphasis of those conclusions will remain important and influential”. In short, an unfavourable outcome of the internal disciplinary proceedings would have a “substantial effect” on the outcome of the statutory barred list procedures (para. 48).

The CA considered that the claimant’s “right to practise his profession”, which would be determined by the ISA proceedings, might be “irretrievably prejudiced by the disciplinary proceedings” (para. 48).

Neither the right of appeal to the Upper Tribunal, nor the right to bring a claim of unfair dismissal in the employment tribunal, provided a sufficient alternative remedy for the claimant for the purpose of Art. 6 (para. 49).

Having concluded that Art. 6 was “engaged” on the facts, the next question for the CA was whether Art. 6 required that the claimant be allowed the opportunity of legal representation in the disciplinary proceedings. On this issue, the CA again found in the claimant’s favour.

The CA emphasised that the level of procedural protection afforded by Art. 6 will depend on what is at stake for the individual in question (para. 51). There will not be a right to legal representation in every case where Art. 6 is engaged. On the facts of the instant case, however, the potential consequences of an adverse finding by the school’s disciplinary committee (i.e. the likely end of the claimant’s career working with children) were so severe that legal representation was appropriate (para. 53).

Laws LJ further observed that the key consideration is the gravity of the issue in the case, not whether the proceedings are more properly characterised as civil or criminal. In his view, that is the “primary driver of the reach of the rights which Article 6 confers” (para. 56).

Comment

The potential implications of this decision, if upheld by the Supreme Court, are easy to foresee. Public sector employers will need to amend their disciplinary policies to reflect the fact that, in certain circumstances, refusing an employee’s request for legal representation at an internal disciplinary hearing will be unlawful. It is to be hoped that the Supreme Court provides clear guidance as to when and in what circumstances this will be the case.

The reasoning of the CA seems to indicate that the right will arise in circumstances where the outcome of an internal disciplinary process has the capacity to destroy or seriously damage an individual’s right to practise his or her chosen profession or occupation generally; in other words, where the potential consequences extend far beyond the loss of employment with that (current) employer.

It is not entirely clear whether the right to legal representation may also arise in circumstances where the employee is facing what is, in essence, a criminal allegation; albeit the CPS may have decided not to press charges, and his/her entire professional career may not be at risk from an adverse disciplinary finding (consider, for example, an employee who is accused of assaulting a work colleague in the course of a heated board meeting; or a junior employee who is accused of dishonestly inflating his timesheet for financial gain).

Another interesting issue is the extent to which the right to legal representation will be available to private sector employees. Will the right be extended, for example, to teachers facing materially identical allegations of misconduct to those faced by Mr G, but who carry out their work in independent / private schools? The CA expressly left open the question of whether the common law might be developed in this manner (para. 27).