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...

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