The High Court has ruled that a School music assistant, who was dismissed for allegations of impropriety with a 15 year old boy, should have been entitled to have legal representation at his disciplinary hearing.
The High Court's decision is case specific and does not set a precedent that all employees are entitled to legal representation at their disciplinary hearings.
However, employers working in the education sector do need to be aware of this ruling. As the employee worked at a School, his dismissal triggered an automatic referral by his employer to the Secretary of State for Children, Schools and Families in order to consider making a Section 142 Direction. In the High Court's view, the serious consequences of such a Direction meant that the employee should be allowed legal representation at the disciplinary hearing.
Therefore, in cases where a dismissal could lead to a Section 142 Direction, consideration should be given to allowing the employee legal representation at the disciplinary hearing. However, legal advice should be sought by the employer before any decision is made.
In the case of R v The Governors of 'X' School, the Claimant (known as "G"), worked at a School, (referred to in the case as School "X") as a music assistant. Following allegations that he had kissed a 15 year old boy, he was dismissed by the School. G then brought judicial review proceedings against the School for their refusal to allow him legal representation at the disciplinary hearing on the grounds that it breached his right to a fair trial (under Article 6 of the European Convention of Human Rights).
Under Section 142 of the Employment Act 2002, where a School has dismissed an individual for being unsuitable to work with children, they must refer the matter to the Secretary of State for Children, Schools and Families. The Secretary of State makes the decision on whether to make a Section 142 Direction based on written representations he receives from the School. There is no opportunity for the individual to have an oral hearing with legal representation before the Secretary of State makes their decision.
The consequences of a Section 142 Direction are that the individual is placed on List 99 and prevented from working directly or indirectly with children for an indefinite period. Any breach by the individual of a Section 142 Direction is a criminal offence punishable by up to 5 years imprisonment. Unlike the Protection of Children Act ("POCA") and Protection of Vulnerable Adults ("POVA") listing regimes (see Howes Percival Newsflash 22 January 2009) there is no "provisional listing" system for a Section 142 Direction.
The High Court ruled that because of the serious consequences of a Section 142 Direction, the Claimant should have been entitled to legal representation at the School's internal disciplinary hearing.