I was very interested to see the Court of Appeal’s decision in the case of G v X School which was issued yesterday. The Court stated that employees should be allowed to be legally represented at disciplinary hearings where those hearings are “determinant of a civil right”.
In other words, where an employee is asserting a civil right, he is entitled to be legally represented throughout a disciplinary hearing, regardless of his employer’s policy. This is in accordance with Article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR).
In G v X School, G was a teaching assistant who had allegedly kissed and had sexual contact with a 15 year old boy. The Crown Prosecution Service did not pursue him in the criminal courts. However, he was subjected to disciplinary proceedings by the school governors. The governors refused his request to be legally represented throughout the disciplinary hearing. G was dismissed and his name passed to the relevant authority to consider whether or not to include him on a list of persons barred from working with children.
G applied to have the governors’ decision not to allow him to be legally represented during the hearing judicially reviewed. The court held that the right to practise a profession is a civil right. Given the potential consequences of G’s dismissal and subsequent referral to the authorities, his civil right was essentially being determined via the disciplinary hearing. Therefore, the school governors’ decision was unlawful under Article 6 of the ECHR.
It is important to remember that this does not mean that every employee is entitled to legal representation during a disciplinary hearing. An entitlement to remain in current employment is not a civil right. The distinction is crucial. If the disciplinary hearing may result in an employee being unable to practise his profession elsewhere, then the hearing is “determinative of a civil right” and the employee is entitled to be legally represented.