Legal Representation At Internal Disciplinary Hearings

The Supreme Court has held that where an individual faces a disciplinary hearing and their dismissal could lead to them being barred from a profession, there is no right to legal representation at the disciplinary hearing provided that the barring decision is sufficiently independent from the dismissal decision. In such a situation an individual has no right, under Article 6 of the European Convention on Human Rights, to legal representation at a disciplinary hearing.

The case in question was R (on the application of G) v The Governors of School X, in which the claimant, G, was dismissed by the school governors following an investigation into allegations of inappropriate behaviour with a 15-year old boy.

By way of background, wherever an employer or organisation in England has concerns that a person has caused harm or poses a future risk of harm to children or vulnerable adults, it must make a referral to the Independent Safeguarding Authority (ISA). The ISA then conducts its own proceedings in order to determine whether the individual in question should be prohibited from working with children and vulnerable adults.

The difficulty arose as Article 6 also provides that everyone is entitled to a fair and impartial hearing in determination of his or her civil rights and, therefore, by implication, to legal representation.

In the present case, G contended that he had a civil right to teach children. G argued that while this would ultimately be determined by the ISA, it would be influenced by the disciplinary proceedings. In light of this, and prior to the disciplinary hearing, G's solicitors wrote to the school to seek permission to represent him at the hearing. This request was refused, the disciplinary hearing proceeded, and G was dismissed. Following the decision to dismiss G, the school was obliged to report the circumstances to the ISA.

G then issued judicial review proceedings seeking a declaration that the denial of his right to legal representation at the disciplinary hearing was in breach of Article 6. This argument succeeded at the High Court, and the school's appeal against that decision was dismissed by the English Court of Appeal. The school submitted a further appeal to the Supreme Court.

The decision

The Supreme Court allowed the appeal by a 4–1 majority decision. The issue was to what degree the two sets of proceedings were linked, as Article 6 protection applied to the ISA proceedings, but not to the disciplinary proceedings...