In R (on the application of G) v Governors of X School (which can be accessed here), the Court of Appeal has held that a teaching assistant was entitled to legal representation during internal disciplinary proceedings.
An allegation of sexual misconduct was made that G had kissed a 15-year-old boy and disciplinary proceedings were brought against him. G requested that he be allowed legal representation at the internal hearings but the governors of X school refused. G was dismissed and, consequently, he sought judicial review of the decision not to allow him legal representation.
The Court of Appeal held that the governors’ decision to dismiss G would ultimately result in him being placed on the children’s barred list that would prevent G from working with children again. While G had recourse through an independent procedure once the internal disciplinary proceedings were exhausted, the Court of Appeal held that the governors’ finding of fact would inevitably influence the decision to place G on the children’s barred list. Therefore, in this case, legal representation would have a significant impact on the outcome of the internal disciplinary proceedings and should be allowed.
The Court of Appeal heard arguments on Article 6 of the European Convention on Human Rights – the right to a fair trial. In these circumstances, Article 6 did include a right to legal representation. However, this was not an automatic right but would depend on the circumstances and what was at stake. As a simplified rule – the greater the charge, the greater the level of protection under Article 6. In this case, the employee was in danger of losing his ability to practice in his chosen profession not just that specific job.