The allegations

G was employed as part-time casual music assistant at X School. Allegations were made that an incident took place at a local church, during which G kissed M, a 15 year old boy who was undertaking work experience at the school at the time. It was also alleged that shortly afterwards G sent M two text messages in which he suggested that the two of them might meet up, either at his house of by going for a drive.

M's parents reported the matter to the head teacher. The head teacher called G to her office and informally suspended him pending an investigation. Immediately afterwards, G had a conversation with the school's child protection officer. The child protection officer gave evidence that G admitted kissing M. However, G disputed the contents of that conversation and the meaning and intent of the text messages.

Refusal of legal representation

Following an investigation, the allegations were formalised as acts of abuse of trust and forming an inappropriate relationship with a child. The school warned G that if the allegations were proved, the school was obliged to inform the Secretary of State that they had concluded that he was unsuitable to work with children.

G requested legal representation at the disciplinary hearing. As a part time casual employee, he did not have a colleague to represent him and was not a member of a trade union. He claimed that without legal representation it would breach his human rights because the potential repercussions could result in a lifetime of disadvantage. The school refused the request on the grounds that under the school's disciplinary policy and the Advisory, Conciliation and Arbitration Service (ACAS) code of practice this was not appropriate.

Before the disciplinary hearing G's solicitors provided written points in G's defence and G gave a written "statement" but refused to answer questions during the disciplinary hearing.

At the disciplinary hearing, the allegations were upheld and amounted to gross misconduct. The school concluded that it was bound to report the incident to the appropriate agencies.

G appealed and requested legal representation at the Appeal Committee. Again the school refused.

The Chair of Governors notified the Children's Safeguarding Operations Unit (POCA) of G's dismissal for gross misconduct, enclosing the investigation report and dismissal decision and of the outstanding appeal.

G applied for judicial review and the appeal was stayed.

The issues

The disciplinary proceedings and the procedure for a s.142 direction are the same.

1. The defendant argued that there were two distinct stages:

a. the disciplinary stage where the standard rules in the Employment Relations Act 1999 (ERA) applied (i.e. a worker has the right to be accompanied to a disciplinary or grievance hearing by a trade union official or a colleague; and

b. the referral to the Secretary of State.

However, the court ruled that there is no distinction in a case like this between the dismissal from employment and a referral to the Secretary of State. A referral was foreseen from an early stage and was inevitable if the allegations were established. The employer is under a legal duty to report a finding of "unsuitable for work with children or of misconduct" to the Secretary of State. As the employer's conclusions on the facts form the basis of the s.142 referral, the disciplinary hearing might well "irretrievably prejudice" the employee. This is because the findings of the disciplinary hearing are, at the least, likely to be determinative of the Secretary of State's decision.

Fairness required that there should be a right to legal representation throughout the whole process.

2. Right to a fair trial.

Article 6 of the European Convention on Human Rights (ECHR) provides the right to a fair trail.

Under Article 6 (1), for civil rights, everyone is entitled to a fair and public hearing.

Under Article 6 (3), for criminal rights, there are listed minimum rights including to defend oneself in person or through legal assistance and to call and cross-examine witnesses.

The High Court decided this case came within the civil sphere. Therefore the rights under 6(3) to legal representation and to call and cross-examine witnesses did not apply.

Nevertheless, because of the serious gravity of the allegations of misconduct (sexual impropriety with a person under the age of 18 and abuse of position of trust) and the severity of the consequences of a section 142 direction on G's future working life, G was entitled to a "commensurately enhanced measure of procedural protection".

This means he was entitled to legal representation at the Disciplinary Committee and the Appeal Committee. He could not fairly be expected to represent himself.

What's more, there is a strong indication that "commensurately enhanced measures" might also include the right to cross-examine witnesses (for example the 15 year old boy). However, as G did not argue for that (he only claimed the right to legal representation), the judge was not able to rule on it.

The fact that there was a right for G to make some representations to the Secretary of State and subsequently to the Appeal Tribunal against a s.142 direction, did not provide sufficient protection to be fair in this case. Although, potentially, other procedures might do in other cases, in this case it was far from clear that the Secretary of State conducted any investigation, he simply acted on the information given by the employer. The role was to review and not fact-find. The finding of fact by an employer's disciplinary hearing was likely to be determinative. The process did not allow a hearing with legal representation before the Secretary of State and he was only required to accept written submissions.

In any event, even if the process did allow these things, because the disciplinary hearings and the procedure before the Secretary of State form the same process, there should be a right to legal representation throughout that whole process.

3. So, where does this leave the right to be accompanied?

It will still apply in most cases. Usually, an employee will only be entitled to be accompanied by a trade union official or a colleague. However, in this case, an employee could not be fairly expected to represent himself in such a case and being accompanied by a trade union official or a colleague was not enough. The judge said that the decision was "confined to the circumstances of the particular allegations of misconduct made in this case and the prospect which was clear from very early on, of referral to the Secretary of State under s. 142".

The decision does not deal with other categories of case which may arise (e.g. other types of misconduct or where there is no question or risk of a referral for a s.142 direction or other similar sanction).

Therefore, while this case is of limited impact generally, it is unlikely to be limited merely to the facts of this case.

4. What about the right to claim unfair dismissal in the Employment Tribunal as an alternative remedy?

The employee's right to a fair trial was not protected through other means (i.e. the right to legal representation in relation to the Secretary of State's decision to include him on the register and/or by bringing a claim for unfair dismissal in an Employment Tribunal).

The Employment Tribunal does not provide a sufficient remedy because the Tribunal only applies a "range of reasonable responses" test to the investigation and decision; it would not have the power to stay process and probably could not order reinstatement because it might involve a criminal offence for the employer to do so.

This option is not a reason to deprive G to the right to legal representation at the Disciplinary Committee and Appeal Committee.

5. So, is the law clear?

The case is limited in application and the difficulty will revolve around which cases and which procedures fall within its parameters.

In addition, we understand that both parties have been given permission to appeal to the Court of Appeal. The school, against the finding that he was entitled to legal representation and the employee on the basis that the proceedings were not "criminal" under Article 6 (3) ECHR (if they were he would specifically have the right to legal representation).

The case is also hard to reconcile with another High Court case Kulkami v Milton Keynes Hospitals NHS Trust [2008] (which is not referred to in the judgement) where the High Court held that a doctor was not entitled to legal representation. The doctor was accused of sexual impropriety with a patient, allegedly conducting an inappropriate examination by placing a stethoscope under her knickers without her permission. If the claims were substantiated, the claimant would not only lose his employment but also any prospect of future employment within the NHS or within his profession by reason of the seriousness of the charges.

That case concentrated on contractual issues relating to the correct disciplinary procedure and breaches of trust and confidence but also dealt with the Article 6 issue of a right to a fair trial. The judge held that in the circumstances on that case it was doubtful that Article 6 was relevant to the disciplinary hearing level but that, even if it was, the complaint nature of the General Medical Council (the disciplinary body with the statutory power to remove or suspend a doctor's right to practice) meant that there was no breach of Article 6 in the circumstances of that case.

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