Supreme Court finds that European Convention on Human Rights did not apply to a disciplinary process so as to give employee the right to legal representation at disciplinary hearing.

The court held that the correct approach to deciding whether an employee (in this case a teaching assistant) has an entitlement to legal representation at a disciplinary hearing was to ask whether the outcome of the process would have a “substantial influence or effect” on any subsequent decision which would impact on his human rights, namely his right to practice his profession. In this case the subsequent decision was to be taken by the Independent Safeguarding Authority (“ISA”), which had the power to bar the employee from working with children.   

However, it found that the Court of Appeal had erred in its application of the test to the facts of this case. While the decision of the employer’s disciplinary panel was a factor to be taken in to account by the ISA when deciding whether this employee should be barred from working with children, there were a number of other factors which showed that it would not have had a substantial influence.  Lord Dyson commented that, “there is no reason to suppose that the ISA will be influenced profoundly (or at all) by the school’s opinion of how the primary facts should be viewed”.

Therefore the decision of the disciplinary panel was held not to have a substantial influence or effect and, accordingly, the employee did not have the right to legal representation.

Implications

The “substantial influence or effect” test is firmly enshrined by a decision of the highest domestic court.

However, its application on a case by case basis will be difficult, requiring an assessment in advance by the employer of the factors likely to be taken into account in a subsequent decision by a separate body.

Background The employee in this case (who is male) took up employment with School X (a small, voluntary aided school) around December 2005. In October 2007, the parents of a 15 year old boy complained to the Headteacher that the employee has kissed their son. They also showed the Headteacher two text messages which they said the employee had sent to their son, together with an entry in the boy’s diary which appeared to indicate a sexual relationship between the two.  

The employee was suspended shortly thereafter and the school conducted a disciplinary process which culminated in his dismissal. During the process, the employee’s solicitors requested that he be legally represented at the disciplinary hearing on the basis that the potential repercussions of an adverse finding were such that it would be a breach of his human rights not to be represented. The school refused the request.

The school were obliged by statute to report the circumstances of the employee’s dismissal to the Secretary of State, which in turn could result in an investigation by the ISA with the potential outcome being to bar the employee from working with children.