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Legal representation at disciplinary hearings may be needed to protect employees' human rights

26 January 2010

The Court of Appeal has ruled that employees may be entitled to legal representation at some internal disciplinary hearings.

In G v X School the Court of Appeal decided that a teaching assistant was entitled to legal representation at an internal disciplinary hearing where he was accused of career threatening misconduct.

It has been settled law for some time that employees facing disciplinary action by their employer are only entitled to be accompanied by a work colleague or trade union representative at meetings.

There is no statutory right for an employee to bring along a lawyer to a disciplinary hearing and any subsequent appeal. 

On the basis of the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), the Court of Appeal decided that a teaching assistant accused of sexual misconduct with a 15-year-old pupil should have been entitled to legal representation at his disciplinary hearing. 

This was because the ultimate result of any disciplinary finding against him would have been inclusion of his name on the so-called ‘List 99’, preventing him working with children or vulnerable adults in the future.

It is important to note that the Court of Appeal did not make a blanket ruling that all employees are always entitled to legal representation at disciplinary hearings. Indeed, it expressly stated that Article 6 would not apply when the only issue at stake was the employee’s contractual right to remain employed with his current employer. 

Effect of the ECHR

The ECHR was integrated into English law under the Human Rights Act 1998 (the Act). Only public sector employees enjoy directly enforceable rights under the Act.

However, although human rights legislation is not directly enforceable against private sector employers, UK courts are required to interpret legislation in a way that is compatible with the ECHR. 

Accordingly, when a tribunal is considering the fairness of disciplinary action where an individual’s future right to carry out their profession is at stake, it will have to consider the human rights angle. 

The Court was clear that what was at stake in this case was the claimant’s right to practise his profession as a teaching assistant, not simply his right to be employed by his employer, and for this reason it was willing to find Article 6 was engaged.

Comment

This situation could occur across a whole range of sectors, for example in financial services, where loss of approved person status (and therefore an inability to work in the sector) could result if the disciplinary charges are made out.

Although the Act distinguishes between civil and criminal proceedings (and on a strict reading of the Act the requirements for fairness appear to be more onerous in the case of the latter), the Court of Appeal made it clear that these classifications were not determinative of an individual’s rights; whether the right to legal representation exists will be a question of fact, determined on the individual circumstances of each case. 

Where such a right does exist other consequences are likely to flow, for example concerning the right for the legal representative to cross examine witnesses. It is likely we will see more litigation in this area as the extent of employees’ entitlements is tested.

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Louise Randall

Associate
T: 03700 86 6911
I: +44 (0)1489 61 6911
E: louise.randall@shoosmiths.co.uk