Supreme Court says no right to legal representation in disciplinary hearings

The Supreme Court has ruled that it was not a breach of an employee’s human rights to refuse him the right to be accompanied by a lawyer at a disciplinary hearing.

The case concerned a teaching assistant who was alleged to have acted inappropriately towards a pupil at the school at which he worked.

Disciplinary procedures were instigated against him; his conduct was found to have constituted an abuse of trust, and he was summarily dismissed. Subsequently, he was informed that his dismissal would be reported to the Secretary of State for Children, Schools and Families on the basis that he might be unsuitable to work with children.

The teaching assistant argued that the disciplinary hearing was in breach of his right to a fair and public hearing under the European Convention on Human Rights and that he should have been afforded legal representation during the hearing. As a result, the High Court found that the disciplinary hearing had breached his human rights, saying that his right to practise his profession might be irretrievably prejudiced in the disciplinary proceedings.

However, the Supreme Court today overruled the High Court. It looked at the case law from the European Court of Human Rights and concluded that it takes “a fact-sensitive, pragmatic approach to the right to legal representation”.

This judgment is of particular significance to public sector employers, which should now be aware that an employee is not automatically entitled to legal representation at a disciplinary hearing that might result in him or her being referred to the authorities and potentially placed on the children’s barred list.

However, the Supreme Court has stressed that the issue is fact sensitive and leaves open the possibility that legal representation may be required in limited cases, although it stopped short of providing examples where this would be the case.

XpertHR has more information on this ruling, as well as further resources on disciplinary hearings.

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