Legal representation at disciplinary hearings
In R v Governors of X School, the Court ruled that a teacher undergoing a disciplinary process was entitled to be represented by his solicitor. Consultant editor Darren Newman considers the case and its implications for employers.
Employees have the right to be accompanied at disciplinary and grievance hearings - but by whom? On one level the answer is straightforward. Under s.10(3) of the Employment Relations Act 1999, the companion must be either a trade union official or another of the employer's workers. However, s.10 of the Employment Relations Act 1999 is not necessarily the end of the story: in R (on the application of G) v Governors of X School and Y City Council [2009] IRLR 434 HC, the Administrative Court held that a teacher going through a disciplinary process was entitled to be represented by his solicitor.
Very particular circumstances apply in the case, and, in the vast majority of disciplinary cases, there will be no question of the employee being entitled to legal representation. The crucial feature of this case was that the teacher was accused of trying to form an inappropriate relationship with a child. If the allegation was upheld and he was dismissed, under the procedure that applied at the time, a reference would be made to the Secretary of State, with the potential result that the employee would be banned from any future work with children.
It was the severity of this penalty - stretching way beyond the immediate consequences of being dismissed - that allowed the employee to argue that the process engaged art.6 of the European Convention on Human Rights, which gives individuals the right to a fair trial "in the determination of [their] civil rights and obligations". Article 6 also has specific requirements regarding criminal proceedings, but the Administrative Court held that the penalty that the teacher would suffer was not such as to bring it into this category.
The right to a fair trial in civil proceedings is less specific than in criminal cases. However, the European Court of Human Rights has held that, in principle, there is a requirement for "equality of arms": each person must be given a fair opportunity to present his or her case in conditions that do not place the individual at a substantial disadvantage compared with his or her opponent (Dombo Beheer BV v The Netherlands [1993] 18 EHRR 213 ECHR). It is this principle that leads to the right to legal representation in a civil matter.
However, the Court of Appeal stressed in R v Securities and Futures Authority Ltd ex parte Fleurose [2002] IRLR 297 CA that "what fairness requires" will vary from case to case and depend on the seriousness and complexity of the allegations.
This is the context for the Administrative Court's decision in R v Governors of X School. The employee was entitled to legal representation because the gravity of the allegations made against him, together with the serious consequences that arose from their being upheld, meant that he could not be expected to represent himself, and that representation by a trade union official or colleague would be inadequate.
Another vital feature of the case was the conclusion that the disciplinary hearing and the subsequent determination by the Secretary of State were part of the same process. Because of this, the right to a fair hearing was applicable to each stage in the process and the employer could not shift responsibility for conducting a fair hearing on to the Secretary of State.
This point is particularly important when considering disciplinary action against employees who may, as a result, be subjected to proceedings for misconduct by their professional body. The consequence of the disciplinary action may be far reaching, but there is more of a separation between the employer's process and that of the professional body than there is between the action of the school and the Secretary of State. Provided that such separation can be demonstrated, art.6 may be relevant in the proceedings of the professional body, but not applicable when it comes to the employer's internal disciplinary process.
So where do employers stand as a result of this case? For the vast majority of private sector employers, the case simply does not apply. The right to be accompanied is as set out in s.10 of the Employment Relations Act 1999, and there is no right to legal representation. Where a professional body may prevent a dismissed employee from practising in the future, there should still be no right to legal representation during the disciplinary procedure, provided that the professional body can be seen as a separate process from the disciplinary proceedings. Where, however, a dismissal itself leads to further action being taken barring the employee from future work, the right to legal representation may apply. However, it will do so only if the nature of the allegations and the evidence to be heard mean that the individual cannot be adequately represented by a colleague or trade union official.
The Administrative Court went out of its way to stress that it was not seeking to establish a precedent. In any event, the decision may be subject to appeal. Even so, taking into account these limitations, there are many employers - particularly in local government and education - that will be under pressure to allow legal representation in some of their internal hearings. This has serious implications in relation to the time that procedures take, and the skills needed by those conducting them.
