Date 5 May 2009
In a recent decision of the High Court, it has been held that in certain circumstances employees have the right to be represented by a lawyer at a disciplinary hearing, rather than being limited to representation from a colleague or trade union official. The case involved the disciplinary hearing of a teacher who was alleged to have kissed a 15 year old boy and sent him inappropriate text messages in an attempt to meet with him. As a result of the disciplinary procedure, the School had a duty to report the employee to the Secretary of State under s142 of the Education Act. This referral could potentially lead to the employee being placed on a register of those unsuitable to work with children.
The employee argued that because he had not had legal representation at the initial disciplinary hearing, his right to the fair trial under Article 6(3) of the European Convention of Human Rights (ECHR) which entitled him to representation for a criminal charge, had been breached.
Under Article 6 of the ECHR, an individual is entitled to have legal representation if a criminal charge is made against him. In the case of civil rights and obligations, Article 6 states that “everyone is entitled to a fair and public hearing within reasonable time by an independent and impartial Tribunal established by law”. In this recent case of the Queen on the Application of “G” and The Governors of “X” School and “Y” City Council, there was much debate as to whether the proceedings could be classified as criminal. Although the High Court concluded that the proceedings were not criminal under domestic law, they considered that they possessed features which had strong criminal connotations in that the consequences of the referral were so serious. They held therefore that the severity of the consequences entitled the employee to a measure of procedural protection which was the equivalent to that which he would be entitled if it was a criminal charge. Therefore, the gravity of the allegations made against the employee, taken together with the serious impact upon his future working life of a potential s142 Direction were such that he was entitled to legal representation at the disciplinary hearing. On such matters it was held that the employee could not be fairly expected to represent himself and that by being accompanied by a trade union official or work colleague was not sufficient.
This case is particularly significant for educational institutions, care institutions and any public sector employer providing services to vulnerable people. Although it was made clear that what fairness requires will vary from case to case, employers may be wise to provide the opportunity for employees to have legal representation at their disciplinary hearing, if there is a risk of a referral under the Protection of Children Act or the Care Standards Act for example. There may well be other situations in which this will be considered to apply, and employers are advised to take specialist advice if they consider there is any risk of such sanctions in response to a disciplinary procedure.
The School in this case has been given permission to appeal but this is currently good law, and must be considered in such situations.
If you have any queries as to the implications that this case could have on your organisation, please contact a member of the employment team on 01727 798000.
© SA Law 2009
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