Date 2 September 2011
A recent case in the Supreme Court has re-considered a Court of Appeal decision on whether employees are entitled to legal representation at disciplinary hearings. The common position is that employees should be offered the right to be accompanied by either a colleague or trade union representative at disciplinary hearings.
The employer can exercise discretion to allow family members or friends to accompany, but there is no obligation to do so.
The case involved a music teaching assistant, G, who was investigated by the Schools Board of Governors under the school's disciplinary procedure following allegations of an inappropriate relationship with a pupil.
The school told G of his right to be accompanied at the disciplinary hearing by a colleague or trade union representative but refused to allow G to attend with a legal representative. G issued judicial review proceedings, seeking a declaration that by denying him a right to legal representation, the school had breached Article 6 of the European Convention on Human Rights which concerns an individual's right to a fair hearing. He succeeded at the High Court and that decision was upheld by the Court of Appeal.
The Supreme Court decided differently. They found that Article 6 applies where there is a “determination of…civil rights and obligations”. This has been taken to mean, in general terms, that Article 6 applies when the proceedings involved have a direct impact on private rights and obligations.
In this case, the civil right in question was G’s right to practice as a teaching assistant and, more generally, to work with children. The school referred the matter to the Independent Safeguarding Authority ("ISA"), who would decide whether to place G on a 'barred list' which would prevent him from working with children in the future.
The sticking point for the Supreme Court was that the school’s disciplinary panel were not directly concerned with the civil right afforded to G. Instead they were sitting to decide upon G’s employment at the school. As such, the Supreme Court decided that the school’s disciplinary proceedings did not trigger Article 6. They said that the direct link between the first set of proceedings (the employer's) and the second (the ISA) was not established. The ISA is obliged to decide for itself on the facts and merits of each case and should not be swayed by the outcome of the school’s disciplinary proceedings.
It is an interesting outcome, particularly where in a previous case (Kulkarni -v- Milton Keynes Hospital) a Doctor was found to be entitled to legal representation under Article 6 as the outcome of the disciplinary proceedings against him determined whether he had a civil right to practice medicine. The difference between this case and that of G was that the outcome of G's disciplinary hearing would have a knock on effect on the later process of the ISA which would decide G's fate and therefore his civil right would not immediately be affected by his employer's process.
The outcome of the various decisions is that Article 6 does have the potential to apply in the workplace. However, this will be in very limited circumstances. In the more common situation where a public sector employer's disciplinary process ultimately moves on to an independent body (such as the ISA), the decision making powers of this body will usually remove the burden of Article 6 compliance from the employer.
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© SA LAW 2011
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