Legal representation at internal disciplinary hearings draws a step closer

Legal representatives could be allowed at some internal grievance and disciplinary hearings following a High Court ruling earlier this week.

In a case involving a school music assistant sacked for alleged inappropriate behaviour with a schoolboy, deputy judge Stephen Morris ruled that the claimant, known as G, was entitled to legal representation at his hearing. The judge based his decision on the European Convention on Human Rights (ECHR) and said G “was entitled to legal representation at any appeal hearing before the appeal committee” of the school concerned.

Because of the nature of the allegations, the claimant, schoolboy, school and city council were not named and were called G, M, X and Y respectively.

It was alleged that G, who was undertaking work experience at school X, was seen in September 2007 kissing boy M at a local church. He then, allegedly, sent text messages to the boy suggesting that they meet at his house or go for a drive together.

The matter was referred to the police and in November 2007 G was suspended as the allegations could constitute gross misconduct. He was told he had the right to be accompanied by a trade union representative or a work colleague.

G’s solicitors asked if he could be legally represented before the disciplinary committee. The request was turned down. He was told that school and council policy stated he could only be accompanied by a colleague or union representative.

The disciplinary committee said “on the balance of probabilities, it was your intention to cultivate a sexual relationship with the child”, and G was summarily dismissed on the grounds of gross misconduct.

Jane Moorman, partner at Howard Kennedy, said the ruling is only likely to impact “a particular set of circumstances”. Basically, where employees who work with vulnerable people – such as children – face disciplinary action that could lead to a life-long ban from working in their profession.

But, she added that it could also apply to professions that are regulated – for example, financial services workers. If they are dismissed for improper conduct they are reported to the Financial Services Agency, and may never be able to work in that field again.

“But it’s most likely to have ramifications in the social care and educational sectors and it [the ruling] will be a worry for the public sector.”

In 2008, in the case of Kulkarni v Milton Keynes Hospital Trust, the High Court rejected the claimant’s request that, under the ECHR, he was entitled to legal representation at a disciplinary hearing.

School X has been given leave to appeal.

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