Right to Legal Representation at Internal Disciplinary

The High Court has held that in certain circumstances, an employee has the right to be represented by a lawyer - and not just a workplace colleague or union official - at internal disciplinary hearings.

In R (on the application of G) v The Governors of X School, the Claimant was employed as a music assistant at X School. The School commenced disciplinary procedures against him for breach of trust as a result of him having kissed a 15year old boy. The Claimant was dismissed.

The School had a duty to report the Claimant to the Secretary of Sae for Children Schools and Families to determine whether he should be entered on the register or those who are unsuitable to work with children.

The Claimant sought to be represented by his legal representative at the internal disciplinary hearings. The School refused.

The Claimant sought to judicially review the School, alleging that the refusal to permit legal representation at the internal hearings constituted a breach of Article 6 of the ECHR (right to a fair trial).

The Administrative Court held that:

• the school was required to have regard to Article 6 of the ECHR
• the internal disciplinary and appeal procedures must be viewed as part of the same procedure as the Secretary of State’s procedures relating to entry onto the register of those unsuitable to work with children.
• as the consequences of a dismissal for the reasons given by the School the Claimant should have been entitled to be represented by his legal representatives, and not just a trade union representative or fellow worker
• the potential to claim unfair dismissal in the employment tribunal would not be an adequate alternative remedy.

Paragraphs 67-69 are the important ones to read. The School has been granted permission to appeal to the Court of Appeal (as has the Claimant, who lost a separate argument that the internal disciplinary proceedings amounted to a 'criminal' charge).

[Thanks to John Bowers QC, who represented the school, for telling me about this case, and to Katherine Apps for providing the above summary]