Veitch Penny LLP - Exeter | Crediton, Devon

Case

R (on the application of G) –v- the Governors of “X” School & Another
High Court – 18 March 2009

Issues

(1) S.10 of the Employment Relations Act 1999 (“ERA”)
(2) ACAS Code of Practice on Disciplinary and Grievance Procedures (“the Code”)
(3) Article 6 of the European Convention on Human Rights (“ECHR”)

Facts

The Claimant was employed by the School as a music assistant. Allegations were made that he kissed a 15 year old boy in a work experience placement. Disciplinary proceedings were initiated for breach of trust and he was subsequently dismissed. The School was under a duty to inform the Secretary of State for Children, Schools & Families that the employee had been dismissed on the grounds that they were unsuitable to work with children. Such a report was made in this case. Thereafter, the Secretary of State has the power to order that the employee be added to a list of people prohibited from working with children.

During the disciplinary hearing and subsequent appeal, the Claimant had asked to be represented by a solicitor. The School had refused. Under the ERA and the Code the employee is entitled to be accompanied by a trade union representative or a work colleague.

The Claimant brought an application for judicial review of the decision not to allow him legal representation at the hearing and appeal. His application was made on the ground that it equated to a breach of Article 6 of the ECHR (which concerns the right to a “fair and public hearing”, and the right that anyone charged with an offence has the right to legal representation and to cross-examine witnesses). He argued that the disciplinary hearing leading to the statutory direction formed part of a criminal process or, in the alternative, if the proceedings were not deemed to be criminal charge, they still involved a termination of his civil rights. As a result, he argued that given the gravity of the charges, legal representation was required at a commensurate level of protection.

Decision

The Court found that the legal proceedings were civil in nature, but the Claimant was entitled to be represented legally as a consequence of the severity of the penalty and the effect that the statutory direction had on his future working career. Representation from a trade union representative or a colleague and the subsequent availability of a tribunal remedy was not sufficient protection in this case. The Court proposed to quash the dismissal decision.

Comments

The School has been granted permission to appeal and the Claimant has been allowed to cross-appeal on the decision that the proceedings were found not to be criminal in nature. Employers in this sector should expect an increase in employees requesting legal representation at disciplinary hearings although the ultimate outcome of the proceedings is clearly highly relevant. As both parties have appealed, we will have to await the outcome from the Court of Appeal where it is hoped that the further guidance may be issued as to how this decision will be interpreted in the future.