In IHL169 we reported about the new Acas code, which came into force on 6 April 2009, and its practical consequences for employers and employees. A recent decision by the Employment Appeal Tribunal (EAT) adds an extra layer to the code in relation to the right to be accompanied to a hearing. The EAT’s judgment will mean that employers will now need to consider allowing employees to be accompanied by a lawyer to a disciplinary hearing, in limited circumstances, where the allegations at issue are so serious that it would be a breach of the employee’s human rights not to do so. legislation
Under the code an employee has the right to be accompanied to a grievance meeting, or a disciplinary hearing, where it could result in:
- a formal warning being issued;
- the taking of some other disciplinary action; or
- an appeal hearing.
G, R (On the application of) v X School & anor [2009] was heard under the statutory disciplinary and dismissal procedures (SDDPs), which provided for the same right, except that it did not apply to meetings where the only possible outcome was a warning.
Before this case was heard, the right was to be accompanied by either a fellow worker, a trade union representative or an official employed by a trade union. Unless the contract of employment or disciplinary procedure provided otherwise (which was rare in practice) there was no right to a legal companion at such meetings.
Facts
In G, R (On the application of), the primary school instigated disciplinary procedures against a teacher (G) due to his alleged acts of abuse of trust with a pupil, which included forming an inappropriate relationship with a child. As required under the SDDPs, the teacher was given the opportunity to be represented at the disciplinary hearing by a trade union representative or a work colleague. A police investigation into the allegations was being conducted at the same time.
Article 6 of the European Convention of Human Rights (the ECHR) provides that everyone is entitled to a ‘fair and public hearing’ in relation to civil rights or criminal charges. If a person is charged with a criminal offence they have the right to legal representation and to cross-examine witnesses. A slightly different test applies to civil cases.
G argued that he was entitled to be legally represented at a disciplinary hearing because, if the allegations were found to be justified, his employer would report him to the Secretary of State for Children, Schools and Families on the basis that he was unfit to work with children. The school refused to allow him legal representation, both at the disciplinary hearing and at a hearing about his pending appeal.
The school summarily dismissed G for gross misconduct, on the grounds that his behaviour constituted an abuse of trust. It also informed him that, as required under law, it would report his dismissal to the Secretary of State. The Secretary of State has the power to direct that an individual is added to the list of people prohibited from working with children in educational establishments (known as a section 142 direction).
G applied for judicial review, on the basis that his rights under article 6 had been breached by the school. He also appealed the dismissal decision, but this was stayed pending the determination of the judicial review.
Judgment
The High Court (HC) held that the allegations were sufficiently serious to mean that G was entitled to legal representation at the disciplinary hearing. In reaching this decision, the HC first had to establish whether the disciplinary procedure conducted by the school was in respect of a ‘criminal charge’.
The HC held that the purpose of a section 142 direction is preventative and protective, rather than punitive (even though its effects upon G would of course be serious). This indicated that the proceedings were civil rather than criminal. The HC then went on to consider whether G was entitled to legal representation under the civil limb of article 6. It held that the gravity of the allegations made against G, when considered alongside the serious impact of a potential section 142 direction on G’s future life, meant that it would be commensurate to allow him legal representation at his disciplinary and appeal hearings. G could not be fairly expected to represent himself, and being accompanied by a trade union official or work colleague would not be sufficient.
As the HC considered that the failure to allow G legal representation at the disciplinary hearing prejudiced the outcome of that hearing it quashed the dismissal decision by the school’s disciplinary committee.
Conclusion
There is now scope for employees to be legally represented at internal disciplinary hearings if the facts of the case suggest that not to allow this would be a violation of their human rights. The key issue will be the gravity of the allegations and whether the employee could fairly be expected to represent themselves in respect of those allegations.
G, R (On the application of) potentially opens the floodgates to give employees the right to legal representation in any case in which they are investigated for serious allegations which, if found to be true, would have severe repercussions for them.
By Clare Battersby, associate solicitor, employment group, Salans.
E-mail: cbattersby@salans.com.
