If asked whether an employee is entitled to legal representation
at internal disciplinary hearings, most experts would say no,
unless an employer's policy specifically stated so. This assumption
has been shadowed somewhat by a recent decision of the UK Supreme
Court.
In R (on the application of G) v The Governors of School X, the
claimant was dismissed by the School Governors after a disciplinary
hearing into allegations of impropriety with a 15-year-old pupil.
He requested legal representation at the internal disciplinary
hearing, but was denied it. The allegations against him were upheld
and, given their nature, the School Governors were then under a
duty to refer the claimant to the Independent Safeguarding
Authority (ISA), the body responsible for ensuring that unsuitable
people do not work with children and vulnerable people. The ISA has
the authority to prevent those deemed unsuitable from working in
schools. It is responsible for conducting its own proceedings; when
making a decision on whether someone should be banned from working
in schools, it need not give the teacher a further opportunity to
be heard.
The claimant sought judicial review of the school's decision not
to allow him legal representation on the premise that this
constituted a breach of Article 6(1) of the European Convention on
Human Rights, on the grounds that the disciplinary proceedings
undertaken by the School Governors effectively constituted a
determination of his civil rights - his right to work in schools.
The Court of Appeal in England determined that because of the
catastrophic effect that the findings of the school's internal
disciplinary meeting could have on his career and the fact that he
had no right to a further hearing before the ISA, he should have
been given the right to have legal representation at the employer's
internal hearing. This decision was appealed to the Supreme
Court.
The Supreme Court has reversed the decision of the Court of
Appeal. Ruling that the ISA's role was wholly separate from that of
the school's disciplinary proceedings and, importantly, that the
two decision-makers were dealing with separate issues, the Supreme
Court has ruled that it was not a breach of Article 6(1) not to
have permitted the Claimant to be legally represented at the
school's internal disciplinary hearing. The school was dealing with
the decision to dismiss, whereas the ISA was dealing with the
question of whether or not to bar the claimant from working in
schools. The court decided that these vital differences meant that
Article 6 did not apply to the school's disciplinary proceedings
and, therefore, the claimant was not entitled to legal
representation, as his civil rights were not being determined at
that hearing. They found that there was no reason to believe that
the school's decision to dismiss the claimant would markedly
influence the ISA against the claimant.
This decision supports the general assumption that an employee
is not entitled to legal representation at an employer's internal
disciplinary hearings. A note of caution, however: if the
employer's internal findings would subsequently be used by an
external body to determine an employee's right to continue in his
chosen profession, the employer would likely be required to afford
the employee the right to legal representation, whether permitted
for in the employer's internal policies or not.
Should you require any further information, advice or assistance
on this topic, or on any other employment issue, please do not
hesitate to contact one of our team.