The Supreme Court has held that where an individual faces a disciplinary hearing and their dismissal could lead to them being barred from a profession, there is no right to legal representation at the disciplinary hearing provided that the barring decision is sufficiently independent from the dismissal decision. In such a situation an individual has no right, under Article 6 of the European Convention on Human Rights, to legal representation at a disciplinary hearing.

The case in question was R (on the application of G) v The Governors of School X, in which the claimant, G, was dismissed by the school governors following an investigation into allegations of inappropriate behaviour with a 15-year old boy.

By way of background, wherever an employer or organisation in England has concerns that a person has caused harm or poses a future risk of harm to children or vulnerable adults, it must make a referral to the Independent Safeguarding Authority (ISA). The ISA then conducts its own proceedings in order to determine whether the individual in question should be prohibited from working with children and vulnerable adults.

The difficulty arose as Article 6 also provides that everyone is entitled to a fair and impartial hearing in determination of his or her civil rights and, therefore, by implication, to legal representation.

In the present case, G contended that he had a civil right to teach children. G argued that while this would ultimately be determined by the ISA, it would be influenced by the disciplinary proceedings. In light of this, and prior to the disciplinary hearing, G’s solicitors wrote to the school to seek permission to represent him at the hearing. This request was refused, the disciplinary hearing proceeded, and G was dismissed. Following the decision to dismiss G, the school was obliged to report the circumstances to the ISA.

G then issued judicial review proceedings seeking a declaration that the denial of his right to legal representation at the disciplinary hearing was in breach of Article 6. This argument succeeded at the High Court, and the school’s appeal against that decision was dismissed by the English Court of Appeal. The school submitted a further appeal to the Supreme Court.

The decision

The Supreme Court allowed the appeal by a 4–1 majority decision. The issue was to what degree the two sets of proceedings were linked, as Article 6 protection applied to the ISA proceedings, but not to the disciplinary proceedings standing alone. The majority decision was that the disciplinary proceedings conducted by the school and the barring proceedings conducted by the ISA were sufficiently independent and dealt with different issues. The disciplinary proceedings dealt with G’s right to remain in employment with the school, and the ISA proceedings dealt with G’s right to work with children more generally. Further, there was no reason to suppose that the ISA would be influenced by the school’s decision in relation to the primary facts of the case. Therefore, Article 6 protection did not apply to the disciplinary proceedings.

Implications of the decision

In his leading opinion, Lord Dyson did note that where the decision in one set of proceedings determines the outcome in subsequent proceedings which determine a person’s civil rights, then Article 6 protection to a fair hearing, and by implication to legal representation, will be engaged at the first stage. It is important to bear this in mind should such a situation arise and a request is made by an employee to have legal representation.

Although this case provides employers with some clarity in terms of when they should and should not allow employees to have legal representation at disciplinary hearings, there remains quite a lot of uncertainty in this area. It would still be advisable for employers who find themselves in this uncertain situation to seek specialist legal advice.

Further information

For further information please contact Murray McCall, Alan Glazer or your usual contact within the Employment Team.

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