The Supreme Court has reversed the Court of Appeal’s decision that a teaching assistant accused of sexual misconduct was entitled to legal representation at a disciplinary hearing before the school’s governors. The teaching assistant had argued that it infringed his human rights to be refused legal representation in circumstances where an adverse finding would almost inevitably lead to a decision from the Independent Safeguarding Authority (ISA) to bar him from working in schools.
The Supreme Court’s analysis of the law was similar to that of the lower courts, but it came to a different conclusion because it placed greater emphasis on the ability of ISA to come to an independent decision on the facts before deciding whether to bar him. That meant that it was the deliberations of ISA, rather than the disciplinary hearing at the school, which were “determinative of his civil rights” within Article 6 of the European Human Rights Convention.
This decision will surprise those who had assumed, based on the reasoning in the Court of Appeal, that public sector employees facing career-threatening allegations would be entitled to legal representation at their disciplinary hearing. However, because the Supreme Court’s decision is fact-specific, it does not lay down a universal rule that Article 6 is never engaged in an internal disciplinary hearing. In this case the governing body of a voluntary aided school was involved, which was not in a position of itself to prevent a member of staff from working in the educational sector. The position might be different in the case of an employer like the NHS which, at least at present, is a virtual monopoly provider of key health services.