In R (on the application of G) v The Governors of X School, a teaching assistant, G, faced an internal disciplinary charge of gross misconduct for having formed an inappropriate relationship with a 15 year old boy. If the charge was upheld, the school would need to report the dismissal to the Independent Safeguarding Authority (ISA) as a school is legally obliged to report the circumstances of dismissals involving findings of sexual misconduct. The ISA would then consider whether to include the dismissed teacher on its list of those barred from undertaking certain work with children, including teaching.
The case is relevant to any employer operating in a regulated sector where decisions about someone's fitness for the role could have wider ramifications for the individual's future career.
The legal issue concerns whether G's rights under article 6(1) of the European Convention on Human Rights applied in the disciplinary hearing that was conducted by X School. G argued that the School's refusal to allow him legal representation violated his article 6(1) rights.
G succeeded in his judicial review proceedings before both the High Court and the Court of Appeal. Briefly, the Court of Appeal held that an employee must be given the opportunity to be legally represented at a disciplinary hearing, when the employee faced circumstances that could result in them being deprived of the right to practice their profession as opposed to losing a specific job. It found that G should have been allowed legal representation at the hearing conducted by X School, as the result would inevitably influence the ISA when making its decision on whether to place him on the barred list.
However, in a surprise majority decision, the Supreme Court has today allowed X School's appeal, overturning both the High Court and Court of Appeal. The question of G's right to practice his profession as a teaching assistant and to work with children more generally is exclusively a matter for the ISA, since only it can decide who goes on to the children's barred list. Accordingly, article 6(1) does apply to proceedings before the ISA. However, it was not the function of X School's disciplinary proceedings to determine the civil right in issue. Rather, it was only concerned with X's employment at the School. Therefore, in and of themselves, the School's disciplinary proceedings against G did not engage article 6(1).
But would the outcome of the disciplinary hearing nevertheless inevitably influence the ISA decision and was article 6(1) engaged as a result? By majority, the Supreme Court held that the Court of Appeal was wrong to conclude it was inevitable that the views of X School's disciplinary panel were likely to have a substantial influence on the ISA's decision. Therefore, X School's disciplinary proceedings, did not engage article 6(1). In particular, this is because the ISA is required to exercise its own independent judgement both in relation to fact-finding and assessing the gravity and significance of those facts. The use of written representations, rather than an oral hearing in the ISA procedure, does not prevent the ISA from making its own findings and forming an independent view of whether to include an individual on the children's barred list.
Lord Kerr, in the minority, would have dismissed the appeal. In his view, the ISA could and indeed should be substantially influenced by the disciplinary tribunal's findings. The requirement that it reach its own independent view of the facts is not inconsistent with this. The overall process must be fair. In his view, the disciplinary proceedings were critical in testing the evidence against the claimant.
For more information, a copy of today's judgment is available on the Supreme Court's website.