Appeal hearing could affect future disciplinary hearings

An appeal case is taking place this week that could have far-reaching implications for the way in which future disciplinary hearings take place.

The case, R (on the application of G) v The Governors of X School, will be heard by the Supreme Court over two days starting today (11 April), and concerns the circumstances in which employees should be allowed legal representation at disciplinary hearings.

The case concerns the school’s treatment of a complaint made against one of its teaching assistants; that he had kissed and had sexual contact with a 15-year-old boy who had been undergoing work experience at the school.

Although the allegation could have amounted to a criminal offence, no criminal proceedings were taken. The school’s governors conducted an internal investigation and disciplinary hearing, and G was dismissed for abuse of trust.

G subsequently applied for a judicial review of the governors’ decisions not to allow him legal representation at the disciplinary hearing or the appeal hearing (which had been postponed pending the outcome of the judicial review). G contended that the governors’ decisions violated his rights under art.6 of the European Convention on Human Rights. G’s case was successful in the High Court but the governors appealed this decision to the Court of Appeal.

The Court of Appeal went on to decide that the right to a fair hearing under art.6 includes a right to legal representation where the issue to be determined is sufficiently serious to warrant it, as it was in this case.

This issues to be decided in this week’s appeal case surround the test for the applicability of art.6(1) and whether or not one stage in legal or disciplinary proceedings will have a “substantial influence or effect” on the civil right; and whether or not the powers and duties of the Independent Safeguarding Authority and the Upper Tribunal were properly assessed and construed, particularly in the light of the curative principle in Convention case law.

Stephen Simpson, XpertHR senior employment law editor, said: “This case is one of the most important employment cases to come before the UK’s highest court in the last few years. The Court of Appeal decision as it now stands doesn’t create a general right for most employees to have legal representation in disciplinary hearings.

“However, it does mean that employees who are going to be barred from their chosen field if dismissed, typically health workers or those who work with children, must be allowed to be accompanied by a lawyer.”

For further information on case reports and forthcoming cases, see XpertHR’s employment law stop press.