R (on the application of G) v Governors of X School 2011 UKSC30

G was a teaching assistant at a school.  He was suspended after allegations concerning a relationship with a 15 year old boy.  At a disciplinary hearing he was not permitted to be represented by a solicitor.  He was summarily dismissed and his dismissal was reported to the Independent Safeguarding Authority so that it could determine whether to place him on a barred list preventing him from working with children.  When his request for legal representation at an appeal against the school’s decision was refused he sought a judicial review of the decision to refuse him legal representation on the basis that it breached his right to a fair trial under Article 6 of the European Convention of Human Rights. 

The High Court found in his favour and the Court of Appeal dismissed the school’s appeal that he should not be given the right to legal representation.  The school appealed successfully.  The majority of the Supreme Court did not consider there was a sufficient connection between the disciplinary proceedings and the ISA proceedings for Article 6 to apply at the earlier stage.  There was no reason to believe that the ISA would not be able to form its own view of the facts independent from that of the school governors.  If the governors’ determination would not have a substantial influence on the ISA’s decision there was not a sufficient connection between the disciplinary proceedings and the ISA proceedings which determined G’s civil right to practice his profession.  Consequently Article 6 did not apply to the disciplinary proceedings. 

Key point:  Article 6 will be engaged so as to entitle an employee to legal representation at internal disciplinary proceedings with a public employer when, despite not explicitly determining the employee’s career prospects, the outcome of the disciplinary proceedings will have a substantial influence on the subsequent determination of those rights.