G was a music assistant at X School. Following allegations that G had an inappropriate relationship with a child, disciplinary proceedings were commenced. If it decided to dismiss, the school was obliged to inform the Secretary of State for Children, Schools and Families, who would then decide whether to add G’s name to List 99, the roll of individuals precluded from working with children.
G’s requests that his lawyer attend both the disciplinary hearing and his appeal against the finding of gross misconduct were refused. The school relied on the right to be accompanied under section 10 of the Employment Relations Act 1999, which is limited to a colleague and certain trade union representatives. Having dismissed G, the school made the mandatory reference to the Secretary of State.
G applied for a judicial review, claiming that the school had breached his rights under Article 6 of the European Convention of Human Rights, in particular that he was entitled to a fair and public hearing in relation to the determination of civil rights. G claimed that as the allegations were in connection with the possible commission of a criminal act, he also had the right to legal representation to cross-examine witnesses at the disciplinary hearing.
G was unsuccessful in arguing that this was a criminal matter and therefore that he should have been given an opportunity to cross-examine witnesses. The High Court found, however, that the disciplinary proceedings to which he was subject, although seemingly an internal process relating to his employment, were actually part of a wider civil process, which included the subsequent and inevitable referral to the Secretary of State. Therefore G’s civil rights under the European Convention of Human Rights were engaged.
It found that a fair hearing could only be achieved if G was allowed legal representation at the disciplinary hearing. This was because G was entitled to an enhanced level of procedural protection over and above his rights under section 10 of the Employment Relations Act 1999 due to the serious nature of the allegations made against him, and the severe consequences for him of a decision to add him to List 99. It held that in these circumstances, G could not be expected to represent himself and that adequate representation could not be provided by a colleague or a trade union representative.
The court rejected the school’s argument that as G was entitled to legal representation if he appealed the Secretary of State’s decision to place him on List 99, or if he brought an unfair dismissal case, he needn’t have the benefit of this during his employer’s disciplinary process.
The court made it very clear that its decision was limited to the particular facts of this case so that the section 10 right to be accompanied applies in all but very exceptional circumstances. Not all regulatory bodies will be subject to judicial review as they are not carrying out governmental functions. Nevertheless, it does leave open the argument that the section 10 right is not adequate in relation to any internal disciplinary process, the outcome of which could result in a decision by an external regulator that an employee be excluded from working in their chosen field. Bodies such as the Financial Services Authority, The Law Society and The General Medical Council, to name a few, have powers to do this, and employers regulated by them have certain reporting duties.
There are of course other circumstances in which an employer needs to show some flexibility on who can accompany an employee at a disciplinary or grievance process. For example, if an employee is disabled it might be a reasonable adjustment to allow an external representative, although this will not usually entail the representative being a lawyer.