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.
3 responses so far ↓
1 Michael Barnes // Jul 28, 2009 at 10:47 am
This is very welcome news and the solictors concerned are to be congratulated on their success particularly as the ACAS code of practice limits representation to a trade union representaive or a colleague. This is not very helpful if you are not a trade union member and you have been accused of say sexual abuse and do not want your colleagues to know about it.
Michael Barnes, National Secretary of Falsely Accused Carers and Teachers.
P.S. This matter came up in the recent report of the Children Schools and Falimies Select Committee see http://www.publications.parliament.uk/pa/cm200809/cmselect/cmchilsch/695/695.pdf
2 Daniel Harrington // Nov 17, 2009 at 2:46 pm
Dear Sir/Madam
While researching info regarding legal representation at disciplinary hearings on the internet I came across your useful article and took up your offer to contact you for advice. I would definitely have a legal representative at my disciplinary hearing next Wednesday if I could.
I work for the Inland Revenue and after a year and a half of going through the formal complaint procedure against my Line manager for bullying, discrimination and harassment and having it dismissed I now find myself facing a hearing with the possibility of losing my job on the pretext of not complying with my linemanager. Do you think I would be able to argue for legal representation.
Thanks
Daniel
3 Montse // May 23, 2010 at 11:23 pm
I am a teacher and I am facing an investigation based on false accusations from a couple of students saying that I have prompted them with exam questions. The school did not contact me but contacted the JCQ directly accusing me of malpractice. I only found out this afterwards and I have never been given the opportunity to defend myself or state the facts. I also have previous experiences that I have considered not correct and therefore made me feel not supported by the school at all leading me to look for help through medical treatment. Could you please give me some advice?
thanks
MLB
Leave a Comment