Representation of the people

The pendulum has swung back in favour of employers when it comes to the right to legal representation at an internal hearing, says Jennifer Jones. The case is likely to have particular impact in cases where the employees are dealing with vulnerable groups of service users.

You will no doubt have noticed the trend of late for employees faced with disciplinary proceedings to claim that they are entitled as of right to be represented at a disciplinary hearing by a qualified lawyer.

This is especially so in the context of serious allegations of misconduct such as those which may arise in connection with staff working with vulnerable groups of service users, such as staff within children’s or adult services. The easy line is to agree. After all, this often serves to assist the employer later on at an Employment Tribunal when fresh arguments, (discrimination, whistle-blowing, etc.) are raised for the first time that were not mentioned in the employee’s defence at the disciplinary hearing.

But is this the right approach at a time when austerity measures mean that the public sector’s ability to provide a gold star adversarial-type disciplinary process must surely be limited? There is no escaping the fact that allowing solicitors or barristers to represent employees at internal hearings tends to lengthen the process and increase cost, not least because most internal Panels will want their own legal adviser if the employee is bringing his or hers.

This trend gained ground following the decision of the Court of Appeal in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789. In that case K, a trainee doctor, was accused of a sexual assault on a patient. He was suspended and brought before an internal disciplinary panel. His employer declined to permit him to be represented by a legally qualified representative and he brought proceedings in the High Court to challenge this. The doctor won in both the High Court and the Court of Appeal on the basis that his contract, properly construed, gave him this right. The case was given broader application, however, as a result of the Court of Appeal’s obiter comments to the effect that, wherever a public sector employee is facing such serious charges at an internal disciplinary hearing that may result in his dismissal in circumstances in which he will find it virtually impossible to find employment elsewhere, Article 6 of the European Convention of Human Rights applies.

The application of Article 6 can give rise to the assertion of a right to legal representation as well as to suggestions as to how the procedure should be conducted and how independent the Panel should be to the employing organisation.

As is the case so often with legal trends, the pendulum having swung far in one direction, it now appears to be firmly on its way back. The Supreme Court gave judgment on 29 June 2011 in the case of R (on the application of G) v The Governors of X School [2011] UKSC30 considering this issue once again.

The claim concerned a 22 year old teaching assistant working for X school as a sessional music assistant. This employee had an encounter with a 15 year old boy who was undergoing a short period of work experience at the school, and this led to allegations being made by the boy’s parents that the Claimant had initiated a sexual relationship between them. The employee was suspended and the inevitable investigation followed leading to the employee facing a charge of gross misconduct for having formed an inappropriate relationship with a child. The disciplinary hearing was to be dealt with by three of the school’s governors, including the Chair, assisted by an HR Adviser from the employer’s Schools Education Advisory Team. Prior to the disciplinary hearing the Claimant’s solicitors wrote to the school seeking permission for them to represent him at the hearing and arguing, in line with Kulkarni, “the potential repercussions of an adverse finding and the potential impact on our client is such that it would be a breach of human rights not to be represented”.

The school refused this request maintaining that the Claimant was entitled to be represented by a trade union representative or work colleague, in accordance with section 10 Employment Relations Act 1999 and the disciplinary procedure. The hearing went ahead and the Claimant was dismissed. The Chair of Governors notified the Children’s Safeguarding Operations Unit and the case was referred to the Independent Safeguarding Authority (ISA) to establish whether or not the Claimant should be included on the “children’s barred list”.

In both the High Court and Court of Appeal the employee successfully established that, in order the preserve his human rights, he should have been allowed to be represented at the disciplinary hearing by a legally qualified representative. This was based on the argument that the decision of the governing body at the disciplinary hearing would have a decisive impact on the decision which would be taken by the ISA as to whether or not the Claimant should be included on the “children’s barred list”. This was said to be so in particular because the ISA had no independent fact-finding procedure which involved a hearing giving the Claimant the opportunity to challenge evidence by cross-examination.

The Supreme Court disagreed, however. The Court dismissed the suggestion, which had been accepted by the Court of Appeal, that the findings of fact made by an employer’s disciplinary panel are generally and in most cases likely to exercise a profound influence on the decision-making process before the ISA. Having referred to the guidance notes and case worker guidance relating to decisions of the ISA, the Supreme Court was satisfied that the ISA would make its own findings of fact based on all the available material. Further, the lack of an oral hearing did not, held the Supreme Court, prevent the ISA from making its own findings of fact.

As a consequence, the Supreme Court decided that the only issue being determined by the governing body was the Claimant’s contractual right to remain in his current employment at that school. Their decision was not determinative of his civil right to practise his profession as a teaching assistant and Article 6 of the European Convention on Human Rights was therefore not engaged.

It is encouraging to read in the judgment of Lord Hope in this case that a thought was spared for the day to day complexities faced by public sector employers. In considering the impact of accepting the Claimant’s arguments he stated that “there is a serious risk that, if that course were to be adopted, disciplinary proceedings in the public sector would be turned into a process of litigation, with all the consequences as to expense and delay that that would involve. The burden that this would impose on employers, and its chilling effect on resort to the procedure for fear of its consequences is not hard to imagine”.

So, there is hope for employers (if you pardon the pun). It is and remains only in the most exceptional of cases where the European Convention on Human Rights is likely to give an employee additional rights and safeguards over and above the generously drafted disciplinary procedures operated by most, if not all, local government employers. Employers are encouraged to be bold and not shy away from their right to manage their staff in the public interest.

Jennifer Jones is a Barrister and Head of Employment at Plexus Law. She can be contacted on 01386 769191 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..