The Court of Appeal has upheld a High Court decision that a teaching assistant was entitled to legal representation at his disciplinary hearing.
This ruling does not mean all employees are now entitled to be represented by a lawyer at a disciplinary or appeal hearings. However in certain professions, like teaching, medicine or social care, where the findings of a disciplinary hearing may determine whether the employee can continue to practice their profession – the employee should be offered the opportunity of legal representation.
If there is doubt about whether the disciplinary hearing could determine or influence an individual's right to practice their profession, legal advice should be sought.
In the case of G v X School, the Claimant (referred to as G) was employed by the school as a teaching assistant. Following allegations that he had kissed a 15 year old boy, the school's governors held a disciplinary hearing and dismissed him.
The school then reported G's dismissal to the Secretary of State for Children's Schools and Families, which it was legally obliged to do. The Secretary of State will then refer the matter to the Independent Safeguarding Authority (ISA) who will decide whether or not to include G on the children's barring list. The consequences of being placed on the list is that G would be prohibited from working again with children in the future.
G brought judicial review proceedings in the High Court on the grounds that he should have been allowed to have legal representation at his disciplinary hearing and that the school's refusal violated his right to a fair hearing under Article 6 of the European Convention on Human Rights.
The High Court upheld G's claim and ruled that he should have been entitled to legal representation at his disciplinary hearing (See Howes Percival Newsflash 23rd March 2009). The school appealed.
The Court of Appeal considered two questions – first, were the disciplinary proceedings determinative of G's right to practice his profession? If so, did Article 6 require G to be given the opportunity of legal representation in the disciplinary proceedings?
The Court ruled that the disciplinary procedure was determinative of G's right to practice his profession because the disciplinary hearing's judgment on the facts of G's case has a 'profound influence' on the ISA's decision whether or not to place G on the barred list. Furthermore although the ISA is independent, its processes for deciding whether or not to place G on the barred list do not include a hearing before the ISA where G could put his case directly to them.
The Court also rejected the suggestion the fact that G could bring a claim for unfair dismissal in an employment tribunal afforded him an appropriate remedy. In particular it noted that the employment tribunal has no power to prevent the listing procedure and would not make a finding as to whether or not G committed the allegation but merely whether dismissal by the school was within the range of reasonable responses.
Finally the Court ruled that given the consequences and what was at stake, G should have been given the opportunity of being legally represented at his disciplinary hearing.