Further to our e-update back in March 2009 on the High Court's decision in R (on the application of "G") v The Governors of "X" School and "Y" Council, we can now report that the Court of Appeal has agreed with the High Court in ruling that a Claimant has the right to be legally represented at an internal disciplinary hearing. The Court of Appeal has emphasised that this right will not apply in every case.

The Court of Appeal Decision

 Featuring heavily in the Court of Appeal decision was the seriousness of the allegations and the potential sanctions for the Claimant. The Court drew from another recent Court of Appeal decision in relation to legal representation; that of Kulkarni v Milton Keynes Hospital NHS Foundation Trust, which considered the applicability of Article 6 of the European Convention on Human Rights. Article 6 enshrines the right, to a fair trial, and in cases involving civil rights it protects certain minimum rights including the right to legal representation. Kulkarni distinguished between disciplinary proceedings in which an individual could lose their job in that particular post, and disciplinary proceedings whereby there was a chance that the individual could be struck off and not permitted to work in any job in that profession indefinitely. Article 6 would be triggered in the latter instance, but could not be relied upon in the former.

With this in mind, the Appeal Court in R (on the application of "G") v The Governors of "X" School and "Y" Council found that Article 6 had been invoked in this case. This was on the basis that the nature of the allegations prompting the disciplinary investigation, if true, gave rise to an obligation to report the allegations to the Secretary of State for Children, Schools and Families, who would ultimately determine whether he should be prohibited from working with children in any educational capacity (under Section 142 Education Act 2002). The ability to practice in one's profession was deemed a fundamental civil right, which clearly held Article 6 implications. Additionally, the Court drew upon the fact that findings/events during the internal disciplinary procedure would be relied upon heavily in the investigation and ultimate decision of the Secretary of State. This, they found, emphasised the centrality of the internal procedures to the ultimate result for the Claimant.

Whilst it is clear from this decision that the right to legal representation at disciplinary hearings will not apply in every case, it is nonetheless an important factor for all employers to consider. It may be a good idea to consider the terms of disciplinary procedures, and whether they would facilitate the right to legal representation for professional workers. In any event, the effect of these decisions should be borne in mind.