Partner Article

Legal representation at internal disciplinary hearings

With Watson Burton LLP Law Firm

A recent case in the High Court has considered an employee’s right to legal representation at an internal disciplinary hearing.

The Claimant in the case worked as a music assistant at a school when disciplinary action was taken against him for alleged acts of abuse of trust with a 15 year old boy. The Claimant requested permission for legal representation at the disciplinary hearing but his request was declined by the school. Following the disciplinary hearing, the Claimant was informed that he was summarily dismissed and the school stated that it would be reporting the Claimant’s dismissal to the appropriate agencies. The Claimant appealed the decision and his request for legal representation at the appeal hearing was also refused. The Claimant subsequently sought judicial review of the school’s decision.

The school sought to rely on the wording of section 10 of the Employment Rights Act 1999, which gives employees the right to be accompanied at disciplinary and grievance hearings but specifies that this may only be by a trade union official or a fellow employee. The Claimant, however, referred to the school’s obligation to notify the Secretary of State following such a dismissal and to the powers of the Secretary of State, under section 142 of the Education Act 2002, to direct that an individual may not provide education at schools or further education institutions.

The Claimant asserted that, as a consequence of the seriousness of the conduct alleged and the severity of the consequences of a s.142 direction following such a dismissal, the disciplinary proceedings amounted to a ‘criminal charge’ within the definition in Article 6(1) of the European Convention of Human Rights (ECHR). On this basis, the Claimant argued that he was entitled to legal representation under Article 6(3) of the ECHR. In the alternative, the Claimant contended that legal representation was nevertheless a commensurate measure of procedural protection.

Whilst the High Court considered that the disciplinary proceedings and the referral to the Secretary of State formed part of the same procedure, it found that the disciplinary proceedings for abuse of trust leading to a s.142 direction did not amount to proceedings in respect of a ‘criminal charge’ within the meaning of Article 6 of the ECHR. However, in the Court’s opinion, the gravity of the allegations and potential impact of the s.142 direction entitled the Claimant to legal representation at the hearings before the Disciplinary Committee and Appeal Committee.

It was made clear in the judgment of this case that the decision ‘is confined to the circumstances of the particular allegations of misconduct made in the present case and the prospect, which was made clear from very early on, of referral to the Secretary of State under s.142’. Despite this clear indication of intention, it seems likely that, in future, the principles established in this case may well be relied on in subsequent cases concerning serious allegations which would result in significant consequences. The decision is of particular importance to public sector organisations whose employees can rely directly on the ECHR. The decision is, however, expected to be appealed.

If you have any comments or questions about this article or any employment matters, please contact Eleanor Wild of Watson Burton LLP at eleanor.wild@watsonburton.com.

This was posted in Bdaily's Members' News section by Ruth Mitchell .