Legal Representation at Internal Disciplinaries

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The Supreme Court has handed down its decision in R (on the application of G) v The Governors of School X which is authority for the proposition that there is no right, under Article 6 of the ECHR, to legal representation at a disciplinary hearing where dismissal could lead to a process capable of barring an individual from a profession, where the barring decision is sufficiently independent of the dismissal decision.

The Supreme Court upheld the Governors' appeal from the Court of Appeal by a 4-1 majority, Lord Kerr dissenting. Lord Dyson, with whom Lord Walker agreed, gave the lead majority judgment, with Lords Brown and Hope giving separate judgments concurring with Lord Dyson.

The Claimant, G, was dismissed by school governors after a disciplinary hearing over allegations of indecent conduct with a 15-year old. He was denied legal representation at the disciplinary. The governors were obliged to refer G to the Independent Safeguarding Authority "ISA", which conducts its own procedures to determine whether or not to put an individual on a 'barred list' of people banned from working in schools. G sought a judicial review of the dismissal on the basis that the disciplinary hearing breached Article 6 of the ECHR by denying him legal representation when his civil rights were determined -here the right to work in teaching- and sought a re-hearing with legal representation, which the High Court granted, the Court of Appeal dismissed the governors' appeal.

Lord Dyson held Article 6 was not engaged at the disciplinary hearing, the nature of the ISA proceedings, being independent of the employer's decision, and dealing with a different question - a decision on inclusion in the barred list - meant that there was no requirement for the School's disciplinary proceedings to comply with Article 6. There was no reason to suppose that ISA's decision, taken under its statutory scheme, and with scope to consider wider evidence, would be unduly influenced by the employer's decision to dismiss. Therefore, Article 6 (1) of the ECHR was not engaged at the disciplinary hearing as a safeguard against a person's civil rights being determined without the benefit of legal representation.

Lord Dyson did note that where a decision in one set of proceedings determines the outcome in subsequent proceedings that determine a person's civil rights, then the right to a fair hearing, and by implication, legal representation, may be engaged at that first stage, which leaves the door open to legal representation at disciplinary hearings in such circumstances.