In the recent case of R (On the application of "G") v The Governors of "X" School and "Y" Council, the High Court has held that in the particular circumstances of the case, an employee was entitled to be legally represented during an internal disciplinary process (as opposed to simply having his statutory right to be accompanied by a colleague or trade union representative).
The Claimant was employed as a music assistant at X School. He faced disciplinary proceedings, resulting in his dismissal, in respect of an allegation that he had committed a breach of trust by kissing a 15 year old pupil. In these circumstances, the school was under a duty to report the Claimant to the Secretary of State for Children, Schools and Families, to determine whether he should be prohibited from working with children in educational establishments (under s142, Education Act 2002). The school informed the Claimant that an investigatory interview would take place, in which his presence would be required. He was also informed of his right to be represented by a trade union representative or work colleague. The Claimant refused to attend. His solicitors then wrote to the school seeking permission for a member of their firm to attend the forthcoming disciplinary hearing to represent their client, stating that "this is an extraordinary case that could result in a lifetime disadvantage for our client" and highlighting the "basic right of representation". The Disciplinary Committee refused the request, however, referring to the fact that the school's disciplinary policy and the ACAS code of practice only allowed for representation of the kind referred to above.
The Claimant sought to judicially review the school, arguing that:
- by virtue of the seriousness of the conduct alleged and the severity of making a s142 direction to the Secretary of State, the proceedings concerned a "criminal charge" and his Article 6 right to a fair trial (ECHR) had been infringed by the refusal of the right to legal representation; and
- even if the disciplinary proceedings were not in respect of a "criminal charge", they nevertheless involved the determination of the Claimant's civil rights and obligations under Article 6 and in view of the gravity and consequences of the allegations, legal representation was required as a commensurate measure of procedural protection.
The court did not accept that the proceedings concerned a "criminal charge", since, amongst other reasons, the purpose of the s142 order was preventative and protective, rather than punitive. However, the judge ruled that "by reason both of the serious nature of the allegations of misconduct and the severity of the consequences of a s142 direction, the Claimant [was] entitled to a commensurately enhanced measure of procedural protection". In determining whether fairness required that legal representation was available, the court was mindful of "the gravity and complexity of the charges". In this case, the allegations of sexual impropriety combined with the very serious impact upon the Claimant's future working life was such that he "could not fairly be expected to represent himself, and being accompanied by a trade union official or work colleague (even if available) was not sufficient".
The judge in this case made it clear that his decision on representation concerned the nature of the particular allegation and the very clear prospect, at an early stage, of referral to the Secretary of State under s142. The case does demonstrate, however, that although having legal representation at internal disciplinary hearings is certainly not a right in every case, given particular circumstances, it is no longer beyond the realms of possibility.