Lack of legal representation at disciplinary hearing did not breach teacher's rights: Supreme Court

A school’s refusal to allow an assistant music teacher legal representation at a disciplinary hearing did not violate his right to a fair trial under Article 6(1) of the European Convention on Human Rights, the Supreme Court has found in a majority ruling.

In R (on the application of G) v The Governors of X School [2011] UKSC 30, the claimant was a sessional music assistant. On 4 October 2007 he was suspended from his post at the school on the basis of allegations he had formed an inappropriate relationship with M, a 15-year-old boy who was doing work experience.

The school launched disciplinary proceedings. The claimant was advised by his solicitor not to participate until the police had completed their investigations. In February 2008, the Crown Prosecution Service indicated that they did not intend to take further action.

The school had completed its own investigation by then, which concluded that there was strong evidence that the allegations were proven.

A disciplinary hearing was then scheduled to take place on 21 February 2008. The claimant was told he could be represented by a trade union representative or a work colleague. He was not a member of a trade union and sought to be represented by his solicitors. However, the school refused to allow this.

The claimant attended the disciplinary hearing accompanied by his father, but refused to answer questions on the basis that he believed the proceedings to be unfair.

The school’s disciplinary panel found that the claimant had formed an inappropriate relationship with M. They held that this constituted gross misconduct which warranted his summary dismissal.

In May 2008, the school reported the dismissal to the Secretary of State in accordance with the legislation preceding the Safeguarding Vulnerable Groups Act 2006.

The question of whether or not the claimant should be added to the ‘children’s barred list’ – and so prohibited from undertaking certain work with children, including teaching – remains pending before the Independent Safeguarding Authority.

Under the 2006 Act, the ISA must include an individual on the children’s barred list if it is satisfied that the person has engaged in relevant conduct (which includes conduct of a sexual nature involving a child) and it is appropriate to include that person on the list.

The authority is required to give that individual an opportunity to make representations. In coming to its determination, the ISA must make an independent evaluation of the facts – it is not bound by any prior disciplinary hearing. This requirement is also set out in guidance for case workers. If placed on the children’s barred list, the individual can appeal to the Upper Tribunal.

The claimant, G, issued judicial review proceedings on 19 May 2008, seeking a declaration that by reason of the denial of his right to legal representation before the school’s disciplinary hearing, it was in breach of his rights under Article 6 ECHR.

He won in both the High Court and the Court of Appeal. However, the Supreme Court – by a majority – concluded that Article 6(1) did not apply to the disciplinary proceedings in issue and so allowed the school’s appeal.

Lord Dyson, giving the lead judgment, said that Article 6 ECHR applied where there was a “determination of ... civil rights and obligations”.

The meaning of “determination” had been considered by the European Court of Human Rights (“ECtHR”) in Ringeisen v Austria (No 1) (1971) 1 EHRR 455. In that case the ECtHR held that it meant “proceedings the result of which is decisive for private rights and obligations”.

In Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, the ECtHR contrasted proceedings which are “directly decisive” of the right in question, to which article 6 applies, with those which have a “tenuous” or “remote” consequence. The ECtHR had repeated this ‘mantra’ in a series of further cases, Lord Dyson said.

The judge said the ‘mantra’ had been applied to circumstances in which initial proceedings did not themselves determine a civil right but were closely linked to subsequent proceedings which did. The ECtHR took a pragmatic, context-sensitive approach to the question of when such a link is established.

According to Lord Dyson, the case law demonstrated that the factors the ECtHR takes into account include:

• whether the first proceedings are capable of being dispositive of the later proceedings or at least causing irreversible prejudice, in effect, by partially determining the outcome of the second proceedings;
• how close the link is between the two sets of proceedings;
• whether the object of the two proceedings is the same; and
• whether there are any policy reasons for holding that article 6(1) should not apply in the first proceedings.

The judge endorsed the test of “substantial influence” formulated by Laws LJ in the Court of Appeal as a useful formulation.

Lord Dyson said in application to the facts of this case, it was not disputed that the civil right in question was the claimant’s right to practise his profession as a teaching assistant and to work with children more generally.

This civil right would be directly determined by a decision of the ISA to include him on the children’s barred list. Accordingly, article 6(1) ECHR applied to proceedings before the ISA.

However, the Supreme Court said it was not the function of the school’s disciplinary proceedings to determine the civil right in issue. Rather, they were only concerned with the claimant’s employment at the school.

Lord Hope said that, taken by themselves, the school’s disciplinary proceedings did not engage article 6(1) ECHR. As regards the establishment of a link such that article 6(1) ECHR applied to the disciplinary proceedings, they did not directly determine or exert a substantial influence over the ISA proceedings.

As a result, in combination with the ISA proceedings, the school’s disciplinary proceedings did not engage article 6(1). Lord Dyson highlighted the fact that the ISA was “required to exercise its own independent judgment both in relation to finding facts and assessing their gravity and significance”.

The decision by the ISA whether to include an individual on the children’s barred list was only taken following an assessment of the full merits of each case, the judge said.

He added that the absence of an oral hearing did not prevent the ISA from making its own findings of fact and forming its own view independent of the view formed by the school

Giving a dissenting judgment, Lord Kerr said he would have dismissed the appeal. The judge argued that the ISA could and indeed should be substantially influenced by the findings of the disciplinary tribunal, “so long as it keeps faith with the requirement that it reach its own independent view of the facts”.

“Although the actual determination takes places at the point when the ISA decides whether to include the respondent on the list, the anterior stage of disciplinary proceedings cannot be left out of account in deciding whether the overall process is fair,” Lord Kerr said.

The judge added: “It is precisely because the disciplinary proceedings provide the only occasion when the competing cases can be presented in direct opposition to each other that legal advice at that point is so crucial. That is the critical time for the testing of the evidence.”

To recognise the claimant’s right to be legally represented at that stage was consonant with the proper safeguarding of his Article 6 rights, Lord Kerr added.