G was a teaching assistant at X School and was alleged to have kissed a 15-year-old boy on work experience at the school. Although the allegation, if true, could have amounted to a criminal offence, no criminal proceedings were taken. The governors conducted an internal investigation and disciplinary hearing, and G was dismissed for abuse of trust.
As a result of the governors reporting their decision to the authorities, as required by law, G’s name could be added to a statutory register, which would prevent G from working with children in the future.
G 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 the governors’ decisions violated his rights under Article 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.
If the purpose of a hearing is to determine an individual’s civil rights or criminal charges against that individual, Article 6 gives that individual has the right to a fair hearing. The Court of Appeal decided that Article 6 was engaged in this case because G’s disciplinary hearing was going to determine his civil rights (ie to practice as a teaching assistant) because the outcome of the hearing would inevitably have a substantial influence or effect on G’s right to practice his profession.
The governors were required to notify their decision to the authority administrating the register, now the Independent Safeguarding Authority (ISA). Although the ISA is an autonomous body, it would not necessarily conduct its own investigation or hold an oral hearing with cross examination. It was likely, therefore, that the governors’ decision at the original disciplinary hearing would influence the ISA’s decision as to whether to include G on the register and, as a result, whether G would be able to practise his profession in future.
The Court of Appeal went on to decide that the right to a fair hearing under Article 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.
It is clear that being accompanied by a legal adviser to a disciplinary hearing is likely to affect its outcome. The Court of Appeal referred to the great deal of difference a professional advocate might make to the “flavour and the emphasis” of the conclusions drawn by the panel deciding the outcome of the hearing.
In the case of Kulkarni  IRLR 829, which concerned disciplinary proceedings against a doctor after an allegation by a patient that he placed a stethoscope beneath her underwear without her consent, the Court of Appeal commented that where an employee was facing a disciplinary hearing that was effectively a criminal charge, Article 6 would imply a right to legal representation at that hearing. The decision in X School has now confirmed this right, and widened it to include the determination of issues that are sufficiently serious and deprive the person of their right to practice in a profession, but are not necessarily criminal or quasi-criminal charges.
The good news is that this decision does not open the floodgates, allowing all employees to demand legal representation at disciplinary hearings. It does, however, put an increased burden on employers, particularly in more regulated professions, to consider the potential outcomes of a disciplinary matter (in particular, whether the employee could be prevented from practising their chosen profession if they are found guilty) and whether those outcomes mean that an employee should have legal representation at a disciplinary hearing or appeal. Also, the Kulkarni and X School cases deal with public sector employees in highly regulated professions. The decisions do not expand on which other professions might be covered by this right in future and whether it will extend to the private sector, particularly to professions that are highly regulated, such as finance, law and accountancy.
It is likely that we will see further litigation on these points in the coming months as employees attempt to apply the principles of this decision to wider situations.
Frances Strickley, associate, and Emma Greenwood, trainee solicitor, Thomas Eggar