3 Oct 2016

Can your lawyer attend your disciplinary hearing?

The Court of Appeal recently handed down its decision regarding whether a teacher accused of gross misconduct should have been entitled to legal representation at the disciplinary hearing under Article 6 of the European Convention of Human Rights (R v The Governors of X School). Article 6 ECHR provides that anyone faced with a criminal charge has the right to legal representation and to cross-examine witnesses and everyone is entitled to a fair and public hearing in relation to the determination of civil rights or criminal charges.

Allegations were made that a teacher had kissed and had sexual contact with a fifteen year old boy on work experience at the school at which the teacher worked, and that the teacher had suggested by text message that they meet up.  The teacher was suspended and disciplinary proceedings commenced against him.  If the allegations were found to be true the school was obliged to inform the Secretary of State, who would consider whether the teacher should be prevented from working with children indefinitely. In such situations, the Secretary of State would place reliance on the school’s disciplinary findings in this regard. An investigation report was compiled by the head teacher which concluded that there was strong evidence that the allegations were proven.  The teacher requested legal representation for the disciplinary and disciplinary appeal hearing but the requests were refused on the basis that the legal entitlement in relation to such hearings was only to be accompanied by either a colleague or a trade union representative. The school found that the teacher’s conduct constituted an abuse of trust and summarily dismissed him.

The teacher brought judicial review proceedings in the High Court seeking a declaration that he had been entitled to legal representation at the disciplinary hearing and as such the hearing was in breach of his rights to a fair hearing under Article 6 of the European Human Rights Convention (ECHR).

The High Court held that there was no criminal charge in this matter (the CPS had not brought criminal proceedings against the teacher) but the gravity of the allegations made, and the very serious impact upon the teacher’s future working life meant that there was an entitlement to legal representation at the disciplinary and appeal hearings.  The school’s arguments that: the disciplinary process was distinct from that carried out by the Secretary of State; or that the teacher could have sought protection in bringing claims before an employment Tribunal were rejected on the basis that the primary findings of fact by the school may well be relied on and proceedings for unfair dismissal did not provide a sufficient alternative remedy for the teacher.  The school appealed to the Court of Appeal.

The Court of Appeal dismissed the school’s appeal and upheld the High Court’s decision and the teacher’s right to legal representation at the disciplinary and appeal hearings (and such that the disciplinary must be heard again).  The Court of Appeal’s reasoning was slightly different to the High Court’s, finding that whether the right to legal representation existed did not depend on classifying whether the action was civil or criminal but rather in establishing in the particular case what protections are required for a fair trial. This is perhaps a more subjective test, which employees may seek to test.

This case follows hot on the heels of the Kulkarni decision concerning the whether an NHS doctor accused of sexual assault had a contractual right to legal representation at a disciplinary hearing.  The issue there focussed on the wording of a contractual entitlement but the Court of Appeal commented that had it been an issue to be decided it would have held that the doctor had the right to be legally represented at the disciplinary hearing under Article 6. The Court explained that Article 6 was not relevant in ordinary disciplinary hearings where what is at stake is simply the loss of a specific job.  However, Article 6 is relevant where the effect of the process is more serious and could deprive the individual of the right to practice his profession and it can give employees in such situations a freestanding right to legal representation.

The Court of Appeal in the Governors of X School case has taken care to seek to restrict the parameters of the ruling by stating that the decision is a result of the specific facts of the case.

We understand from leading employment Counsel that certain employers in certain industries are already allowing legal representation when conducting disciplinary proceedings which may lead to summary dismissal. In our view on the current law this will only be required in rare circumstances.  In most cases it would be inadvisable to allow an employee to be legally represented as it could prolong the disciplinary process, make the decision making process more difficult and is likely to send a message of nervousness to the employee.

We are likely to see employees trying to run the argument that in certain industries dismissal for gross misconduct may well make the employee unemployable in their field.  The more probable areas for extending the rights are likely to be in those in regulated fields, such as the financial  industry and the legal profession.  Until and unless the scope of the right to legal representation is extended further (with the exception of certain public sector industries) the practical advice is to consider requests for legal representation fairly and rationally and then document your considerations and the reasons for your decision.

This is highly likely to be an area which is tested through the Courts and one to keep an eye on.

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