Legal representation permissible in internal disciplinary hearings

July 28, 2009

Ashby Cohen Solicitors have reported that the High Court have determined that in certain cases an accused individual who is subject to disciplinary proceedings is entittled to an enhanced level of representation in the form of a solicitor at some disciplinary proceedings. They report:- 

A recent case in the High Court has determined that, in certain special circumstances, an employee should have the right to be represented by a lawyer at an internal disciplinary hearing. Previously, only a co-worker or union official had been permitted to accompany an employee in such a manner.

In the case of R v The Governors of X School, disciplinary action for breach of trust was taken against a music teacher after it was alleged that he had behaved inappropriately with a 15 year old student. The school had a duty to notify the Secretary of State for Children’s Schools and Families of the result of the hearing. They would then decide whether or not the employee would be added to a register of people not fit to work with children.

The employee made a request for his lawyer to represent him at the disciplinary hearing, but this request was refused.

Subsequently, the teacher claimed that by not allowing his lawyer to attend the hearing, the school had breached his human rights under Article 6 of the European Convention of Human Rights (ECHR) by not giving him a fair trial, and requested a judicial review by the Court.

The Court determined that, owing to the seriousness of the allegations made against the teacher and the fact that the decision of the school could have wide-ranging and severe consequences for the teacher’s personal life and career, he should be entitled to “an enhanced measure of procedural protection”, and that he should have been granted legal representation at the original hearing and the appeal.

In a matter of such importance, the Court ruled that the teacher could not reasonably be expected to represent himself, and that the assistance of a Trade Union official or a colleague was not sufficient to ensure that the disciplinary hearing was conducted fairly. Although the teacher did have the right to claim for unfair dismissal, this was not an adequate alternative remedy.

It was stressed by the Court that this decision would not have far-reaching implications – the decision was very much dictated by the facts of the particular case, and the use of the ECHR was only possible because the employer was a public authority.

 See: http://www.bailii.org/ew/cases/EWHC/Admin/2009/504.html  judgement

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