R (on the application of G) v Governors of X School and Y City Council [2010] EWCA Civ 1 CA

human rights | disciplinary hearing | request to be accompanied by a lawyer

The Court of Appeal has held that an employee should have been allowed to be accompanied by a lawyer at a disciplinary hearing in circumstances where a consequence of the hearing could be the addition of his name to the register of individuals deemed unsuitable to work with children.

G was employed as a music assistant at X school. Allegations were made against him that he had kissed a 15-year old boy. The school's disciplinary procedures were instigated against G, culminating in a disciplinary hearing during which it was found that his conduct constituted an abuse of trust. He was summarily dismissed. He was informed that his dismissal would be reported to the Secretary of State for Children, Schools and Families on the basis that he might be unsuitable to work with children. He sought a declaration that the disciplinary hearing was in breach of his right to a fair and public hearing under art.6 of the European Convention on Human Rights and that he should be afforded a hearing during which he had legal representation. G brought judicial review proceedings in the High Court, which found that the disciplinary hearing had breached G's human rights.

The Court of Appeal agreed. It said that, where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding) and a "civil right or obligation" will be determined in one of them, he or she may (not necessarily will) enjoy appropriate procedural rights in any of the other proceedings if the outcome will have a substantial impact on the civil right or obligation.

The Court of Appeal said that there is every likelihood that the outcome of the disciplinary process in a case like this, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making procedures relating to G's suitability to work with children. G's right to practice his profession, which would be at stake in the barring procedure, may be irretrievably prejudiced in the disciplinary proceedings. Therefore, art.6 is engaged because the civil right in issue is G's right to practice his profession. A professional advocate might make a great deal of difference to G's case and, if an advocate might have made a difference in the internal proceedings, the disciplinary findings on the barring procedure might also have been different.

The Court of Appeal followed its earlier decision in Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health [2009] IRLR 829 CA, where it was found that a doctor who might have been "barred from employment in the NHS" was entitled to legal representation in disciplinary proceedings.

Case transcript of R (on the application of G) v Governors of X School and Y City Council (on the BAILII website)

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