R (on the application of G) v X School

The Court of Appeal has held that, where the outcome of a disciplinary hearing could have a substantial influence or effect on an individual’s right to practise his profession, Article 6 of the European Convention on Human Rights (“ECHR”) gives that individual a right to a fair hearing which includes the right to legal representation during the disciplinary hearing.

Implications

What is clear from this decision is that Article 6 will be engaged if the effect of the disciplinary proceedings, if found, would be to deprive a person of their right to practise their profession. What is perhaps interesting is that traditionally “profession” referred to doctors, dentists, lawyers, teachers etc. This definition has now been widened to essentially include those individuals who could become unemployable in the role they were performing. Due consideration therefore has to be given to the possible implications of the outcome of any disciplinary hearings when considering the rights of employees. To avoid any arguments, employers should consider offering legal representation at disciplinary hearings to those individuals whose employability in that particular job is at stake. This is particularly so where the employer is a public body.

Background

G was a teaching assistant at X School (“the School”). Following a disciplinary hearing, G was dismissed for abuse of trust arising out of an allegation that he had kissed and had sexual contact with a 15 year old boy who was undertaking work experience at the School.

The School was obliged to report the circumstances of G’s dismissal to the Secretary of State, as a result of which G’s name could be added to a statutory register, which would prevent him from working with children in the future (“the Barred List”). During the course of the disciplinary proceedings, G asked to be legally represented at the disciplinary hearing. This request was refused.

By way of judicial review proceedings, G sought to challenge the School’s decision not to allow him legal representation on the basis that it violated rights enjoyed by him under Article 6 of the ECHR. G's case was successful in the High Court which held that G was entitled to legal representation under Article 6 of the ECHR. The School appealed this decision to the Court of Appeal.

The Court of Appeal upheld the decision. The key ground being as follows:

Whether an individual has the right, under Article 6, to legal representation at disciplinary hearings depends on what is at stake. The decision of the School would inevitably have had a substantial influence or effect over the decision of the Secretary of State as to whether G’s name would be placed on the Barred List and therefore whether G would be prohibited from practising his profession in the future. Article 6 was therefore engaged on the basis that the disciplinary proceedings were determinative of G’s right to practise his profession.