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When should an employee be entitled to legal representation at a disciplinary hearing?
Employers may remember the case of G v X School from March 2009, in which the High Court decided that, under Article 6 of the European Convention on Human Rights (“ECHR”) - the right to a fair trial - a teaching assistant should have had the right to legal representation at a disciplinary hearing that could result in his dismissal and the Independent Safeguarding Authority (ISA) adding his name to the register of individuals deemed unsuitable to work with children.
The School Governors appealed against the High Court’s decision. The appeal was heard on 6 October 2009 and the Court of Appeal’s decision was finally handed down on 20 January 2010 (G v X School).
The Court of Appeal dismissed the appeal and found that the teacher had a civil right to practise his profession and that the disciplinary proceedings were a determinant of this right as their outcome would have a substantial effect on the ISA’s decision whether or not to add his name to the register of individuals deemed unsuitable to work with children. Consequently, the teaching assistant was entitled, under Article 6 of the ECHR, to the right to be legally represented at a disciplinary and appeal hearing.
The Court of Appeal commented that a professional advocate might have made a great deal of difference to the construction placed on the primary facts and to the primary facts themselves, if they were in dispute. If this had happened in this case the school governors’ conclusions might have had a different effect on the ISA’s decision-making.
Implications
The principles on which the decision is based could potentially have a wide application giving the right to legal representation at a disciplinary/appeal hearing to any employee faced with serious misconduct allegations which, if substantiated, would trigger a referral to another body to determine the employee’s ability to practise his profession and would have a substantial effect on that body’s decision.
In such cases, employees of public sector employers (or private sector employers which exercise public functions) can potentially either (1) pursue judicial review proceedings to enforce the right to legal representation (potentially overturning the decision to dismiss) or, (2) bring an unfair dismissal claim (assuming they have the requisite 1 year’s continuous service) where the employer has refused to permit them to be legally represented at a disciplinary/appeal hearing which resulted in their dismissal. Other private sector employees can only pursue the second option.
In all other cases, unless the employment contract provides additional rights to be accompanied at disciplinary hearings, the statutory right to be accompanied by a work colleague or accredited trade union representative should continue to suffice.
The case will be particularly relevant to schools, nursing and care homes, hospitals (all of whom provide educational or care services for children or vulnerable adults) and to employers who are regulated by the Financial Services Authority as well as to other regulated roles (police and probation officers and social workers) and to professional jobs where reference may be made to a professional body (solicitors/accountants/doctors/nurses/dentists).
Until the precise scope of application of the decision has been clarified by further case law, it would be prudent for employers to offer employees the option of being legally represented at disciplinary/appeal hearings where, if proved, the effect could deprive them of their right to practise their line of work (i.e. make them unemployable in that particular job). If in doubt, employers should seek specific legal advice from M&A’s Employment team.
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