Legal representation at disciplinary hearings
18 July 2011
The Supreme Court has held that it was not a breach of Article 6 of the European Convention on Human Rights (ECHR), to refuse a teaching assistant`s request to be accompanied by a lawyer at a disciplinary hearing.
The case of R (on the application of G) v Governors of X School (2011) concerned the dismissal of a teaching assistant, following allegations of an inappropriate relationship with a 15 year old pupil. The school was obliged to refer details of the case to the Independent Safeguarding Authority ("ISA"), which determines whether to ban individuals from working with children in future. When G`s request for legal representation at the school`s disciplinary hearing was refused, he claimed this was a breach of his right to a fair trial under Article 6 of the ECHR.
Both the High Court and the Court of Appeal found in favour of G. However, the Supreme Court overturned the Court of Appeal decision. It was only at the ISA stage that G`s right to continue his profession was at stake. In the court`s view, the school`s decision would not have a substantial influence on the subsequent decision of the ISA. The ISA would make its own findings independently. As such, the Article 6 right to legal representation only applied to the ISA proceedings, which concerned G`s civil right to work with children in future. In contrast, the school`s disciplinary process only concerned G`s right to remain employed by the school.
This decision suggests that legal representation, within the public sector, may still be appropriate, where the outcome of disciplinary proceedings, is likely to have a strong influence on subsequent proceedings to determine the right of someone to practice his or her profession.
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