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We are all familiar with the right to be accompanied to disciplinary and grievances meetings by either a colleague or TU representative. Any request to be accompanied by a lawyer would normally be refused and justifiably so given these are intended as non adversarial internal processes.
However, in R on the application of G the Governors of X School and Y City Council [2009] IRLR 434 HC the High Court has held that an employee should have been allowed to be accompanied by a lawyer at a disciplinary hearing in circumstances where a consequence of the hearing could be the addition of his name to the register of individuals deemed unsuitable to work with children.
This case suggests that where a dismissal is a possible outcome of the disciplinary hearing and the dismissal would result not only in the loss of the employee’s job but also threaten his future employment prospects, reputation or ability to pursue his career, he may have the right to legal representation.
G was employed as a music teacher at a school. Allegations were made that he had kissed a 15 year old boy. The school arranged a disciplinary hearing, informing G that he would be entitled to representations by either a trade union representative or a colleague as was the school’s procedure.
G pointed out that as a part-time casual employee, G had no colleagues to represent him and nor was he a trade union member. He asked to be allowed legal representation. This was refused. Following the hearing, the disciplinary panel found there had been inappropriate conduct and an abuse of trust amounting to gross misconduct.
Accordingly they decided that G should be summarily dismissed, and his dismissal be reported to the Secretary of State on the basis he might be unsuitable to work with children. G’s request for legal representation at his appeal was also refused.
G applied to the High Court, seeking judicial review of the decision not to permit him legal representation and a declaration that the disciplinary hearing was in breach of his right to a fair and public hearing under Article 6 of the European Convention on Human Rights (ECHR).
The court held that the disciplinary procedure did not amount to proceedings in respect of a criminal charge and therefore legal representation was not automatic. However, taking into account the gravity of particular allegations along with the very serious impact upon the claimant’s future working life if he was added to the register of individuals deemed unsuitable to work with children, the claimant was entitled to legal representation (an “enhanced measure of procedural protection”) at the hearings before the disciplinary and appeal committees.
The Court specifically stated that this decision only related to the facts of this case, and was not intended to have wider implications although it is likely that employees in the care sector, or those otherwise working with children or vulnerable adults may try to rely on this case to seek legal representation at disciplinary hearings.
You should note however that only public sector employees could bring a claim under the ECHR as G did. Those employed in the private sector are not in the same position as they cannot rely on the ECHR directly. This would mean that an employee in the private sector would have to use other rights, such as claiming that they had been unfairly dismissed because of failure to follow a fair process, if they wish to argue that they should have been permitted legal representation at a disciplinary hearing.
Employers should continue to only consider permitting legal representation at disciplinary hearings in exceptional circumstances.
Sarah Bull is a solicitor at Bates Wells & Braithwaite. www.bateswells.co.uk