The High Court has held that a teacher should have been allowed legal representation at an internal disciplinary hearing because of the severity of the consequences of his dismissal (R (on the application of G) v The Governors of X School and Anor).
The claimant was a music teacher against whom allegations of sexual impropriety and abuse of trust were made. When the allegations were upheld and the teacher dismissed, his employer was required to report him to the Secretary of State (under section 142 of the Education Act 2002) to determine whether he should be placed on a list of persons prohibited from working with children in the future. The Governors refused his request to be represented by his lawyer both at the disciplinary hearing and the subsequent appeal, relying on section 10 of the Employment Relations Act 1999, which entitles employees only to be accompanied by a work colleague or trade union representative. The teacher therefore brought judicial review proceedings, alleging that the failure to allow legal representation amounted to a breach of his right to a fair trial under Article 6 of the European Convention of Human Rights.
The High Court ruled that the disciplinary proceedings and section 142 referral amounted to "civil proceedings" under Article 6. Because of the serious nature of the allegations of misconduct and the severity of the consequences of a section 142 referral, the teacher should have been allowed legal representation at both the disciplinary and appeal hearings. In the circumstances, being accompanied by a colleague or trade union official was not sufficient.
The decision to dismiss him was set aside.
Impact on Employers
- The court in this case commented that this decision is confined to the particular facts and does not set a precedent that employees are entitled to legal representation at disciplinary hearings. Other recent cases have applied the law differently – see our report on Kulkarni v Milton Keynes Hospital NHS Trust, where the High Court held that a refusal to allow legal representation did not, on the facts of the case, breach the employee's rights under Article 6.
- An employer should allow legal representation where the allegations against an employee are such that, if upheld, the employee would be prevented from working with children or vulnerable adults.
- Employers should also consider allowing legal representation in other cases where the alleged misconduct may seriously affect professional standing and future employment prospects beyond the loss of the employee's current employment.
- Only public bodies can be subject to judicial review. In the private sector, the challenge by the employer must be through an unfair dismissal claim in the employment tribunal which, in contrast to the High Court, has no power to overturn the decision to dismiss. It can order reinstatement, but such orders are very rare (reinstatement or re-engagement was awarded only 8 times in the last year for which statistics were collected).