Right To Legal Representation During Internal Disciplinary Proceedings
In the recent case of R (On the application of
"G") v The Governors of "X" School and
"Y" Council, the High Court has held that
in the particular circumstances of the case, an employee was
entitled to be legally represented during an internal disciplinary
process (as opposed to simply having his statutory right to be
accompanied by a colleague or trade union representative).
The facts
The Claimant was employed as a music assistant at X School. He
faced disciplinary proceedings, resulting in his dismissal, in
respect of an allegation that he had committed a breach of trust by
kissing a 15 year old pupil. In these circumstances, the school was
under a duty to report the Claimant to the Secretary of State for
Children, Schools and Families, to determine whether he should be
prohibited from working with children in educational establishments
(under s142, Education Act 2002).
The school informed the Claimant that an investigatory interview
would take place, in which his presence would be required. He was
also informed of his right to be represented by a trade union
representative or work colleague. The Claimant refused to attend.
His solicitors then wrote to the school seeking permission for a
member of their firm to attend the forthcoming disciplinary hearing
to represent their client, stating that "this is an
extraordinary case that could result in a lifetime disadvantage for
our client" and highlighting the "basic right of
representation". The Disciplinary Committee refused the
request, however, referring to the fact that the school's
disciplinary policy and the ACAS code of practice only allowed for
representation of the kind referred to above.
The claim
The Claimant sought to judicially review the school, arguing
that:
by virtue of the seriousness of the conduct alleged and the
severity of making a s142 direction to the Secretary of State, the
proceedings concerned a "criminal charge" and his Article
6 right to a fair trial (ECHR) had been infringed by the refusal of
the right to legal representation; and
even if the disciplinary proceedings were not in respect of a
"criminal charge", they nevertheless involved the
determination of the Claimant's civil rights and obligations
under Article 6 and in view of the gravity and consequences of the
allegations, legal representation was required as a commensurate
measure of procedural protection.
The decision
The court did not accept that the proceedings concerned a
"criminal charge", since, amongst...
To continue reading
Request your trial