Court of Appeal says employees may sometimes have right to legal representation at internal disciplinary hearings

Employees of public sector organisations should be allowed legal representation at internal disciplinary proceedings if they are facing allegations that could result in them losing the right to practice their profession, the Court of Appeal has ruled.

The claimant in G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 (20 January 2010) was a music assistant at a school when a complaint was made that he had kissed and had sexual contact with a 15-year-old boy on work experience.

If the allegations were true, it is likely they would have constituted an offence under s. 16 of the Sexual Offences Act 2003, the appeal court said. However, it was known by 1 February 2008 that the Crown Prosecution Service would not be taking criminal proceedings. The governors later conducted an internal investigation and disciplinary hearing, and dismissed the music assistant for abuse of trust.

The claimant challenged through judicial review the governors’ decision not to allow him legal representation at the disciplinary hearing or at a forthcoming appeal hearing, arguing that this breached his rights under Article 6 of the European Convention on Human Rights (the right to a fair trial).

The local authority’s policy was that employees could be represented in internal disciplinary hearings by a colleague or trade union representative, but no other person was permitted to enter the hearing.

Following his summary dismissal, the disciplinary panel wrote to the claimant notifying him of his rights to appeal but also that they were concerned he had “behaved in a way that indicates you may be unsuitable to work with children and as such will be reporting your dismissal to the appropriate agencies”. The claimant was subsequently told that he had no right to legal representation at his appeal.

Giving the lead judgement in the Court of Appeal, Lord Justice Laws said: “The force of the disciplinary decision lies not only in the governors’ view of the primary facts, but especially in their judgement as to how those facts should be viewed.”

He added that the outcome of the disciplinary process, where there was a finding of abuse of trust by virtue of sexual misconduct, would have had a profound influence on the decision-making procedures relating to the barred list procedures (which does not provide for a hearing about the facts of a case).

“The claimant’s right to practise his profession, which will be directly at stake in the barred list procedures, may be irretrievably prejudiced by the disciplinary proceedings,” the judge found, concluding that Article 6 was engaged on that footing.

Lord Justice Laws said that Article 6’s relation to civil hearings does not necessarily entail a right to legal representation, but it may do so (and, in this case, did). He therefore backed the district judge’s view that the claimant should have been allowed to arrange legal representation if he wanted to do so.

Commenting on the ruling, Eversheds partner Owen Warnock said it was consistent with Kulkarni v Milton Keynes NHS Foundation Trust, in which the Court of Appeal ruled that doctors and dentists employed by NHS bodies in England are entitled to legal representation at disciplinary hearings. The key was the fact that the barred list procedure does not provide for a hearing about the facts of case, and so the employer’s conclusions would be very significant in relation to the claimant’s right to practise his profession.

Warnock added: “The G, R (on the application of) v X School & Ors case is not authority for the proposition that employees have a right to legal representation at all disciplinary hearings. It does, however, mean that where the consequences of dismissal go beyond simply losing a job, ie they could prevent an individual working in their profession in the future, employers should proceed with caution where legal representation is requested.”