The Supreme Court has overturned the decisions of the Court of Appeal and High Court that a music teaching assistant at a primary school should have been allowed legal representation at an internal disciplinary hearing. G has been accused of engaging in indecent conduct with a 15 year old undertaking work experience. He was denied legal representation in an internal disciplinary hearing and was dismissed for gross misconduct. He claimed that his right to a fair trial had been infringed (European Convention on Human Rights, Article 6) because the finding would be likely to mean that he would then be placed on the "barred" list by the Independent Safeguarding Authority (ISA) and therefore permanently barred from his profession.
In considering his judicial review application last year, the Court of Appeal held that where employees need authorisation from an external regulator to carry out their chosen profession or occupation and a dismissal could lead to the regulator withdraw authorisation, then the employee should be allowed to bring a lawyer into a disciplinary hearing. However, the effect of the more recent Supreme Court ruling is that employees subject to authorisation by the ISA, such as teachers, will no longer be able to argue that they are entitled to legal representation at internal disciplinary proceedings because of the potential for the ISA to be influenced by the outcome of those proceedings.
However, there could still be scope for employees to argue for a right to legal representation at disciplinary hearings in some other cases where their career is at stake, especially in the public sector or where an employer is a "monopoly" employer (as in Kulkarni v Milton Keynes Hospital NHS Trust in 2009 when the Court of Appeal held that the NHS felt into that category). Each case will need to be considered on the specific facts as it may be that procedures create contractual rights for disciplinary matters to be deal with in a certain way, including the availability of legal representation.
Outside the public sector, employees could not rely on the human rights legislation and there are fewer monopoly employers or areas where employees are subject to authorisation; but there have been cases that have said that if an employee brings an unfair dismissal claim, rights under Article 6 should be weighed in the balance when a tribunal considers whether the dismissal was reasonable. In particularly difficult or sensitive cases, employers may wish to consider, as an exception to their usual approach, granting a request for legal presence at hearings in order to nullify later arguments from the employee about other alleged flaws in the process.
The contents of this brochure are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.
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