The Court of Appeal has confirmed that an employee may have the right to legal representation at a disciplinary hearing where the hearing could result in them being prohibited from practising their profession. This is based on the right to a fair trial under Article 6 of the European Convention of Human Rights (R (on the application of G) v X School and others).
For the background to this case see our e-bulletin reporting the High Court decision in this case. The Court of Appeal rejected the school's argument that the disciplinary proceedings were not determinative of the teacher's ability to continue in his profession. It found that:
- the School Governors had reported the teacher's dismissal to the Independent Safeguarding Authority (ISA) so that it could determine whether he should be placed onto a register of people prohibited from working with children;
- an ISA listing would fundamentally limit his ability to practise his profession and this meant that the disciplinary proceedings would effectively determine his right to continue working as a teacher; and
- the school's internal process would have a substantial influence or effect on the ISA's decision.
The Court of Appeal confirmed that, where an individual is subject to two or more sets of proceedings and one of those could determine whether they will be entitled to practise their profession, that person may be entitled to legal representation in both proceedings if the result of one would have a substantial influence or effect on the other.
Impact on employers
- This decision is consistent with the earlier Court of Appeal judgment in Kulkarni, where a doctor faced charges so serious that he would effectively be barred from employment in the NHS if guilt were established. In those circumstances, the Court of Appeal also held that the Article 6 right to a fair trial required the employer to permit legal representation at the disciplinary hearing.
- Other employees in the public sector facing disciplinary charges with serious consequences if there is a finding of guilt may be able to rely on Article 6 to insist on legal representation where they face a threat to their ability to practise their profession, rather than simply the loss of a specific job.
- Article 6 does not apply directly to private sector employers but it is not uncommon for private sector employers to receive requests from an employee to be accompanied by a lawyer to disciplinary hearings. All employers should therefore ensure that their disciplinary procedures deal clearly with the right to legal representation.
- Even where policies exclude legal representation at disciplinary hearings, employers in the private sector should consider granting a request if the circumstances are sufficiently serious, for example where an employee could face criminal charges or be struck off by their professional body as a result of their alleged misconduct.
- We understand that the Kulkarni case has been appealed to the Supreme Court and will report any further developments.