Legal Representation for Employees

In what circumstances should employees be permitted legal representation? 

It is normally the work colleague, or trade union official that would help at an internal disciplinary hearing. However, the Supreme Court is soon to decide whether an employee could be entitled to legal representation also. 

R (On the Application of G) v Governors of X School

In this case, the Claimant was employed as a teaching assistant at a primary school. He was accused of having sexual contact with a 15 year old boy who was undertaking a period of work experience at the school. After an internal disciplinary hearing in February 2008 he was dismissed. He was told that he would be reported to the appropriate authorities for possible inclusion on the register of those deemed unsuitable to work with children.

Request for legal representation in serious cases

Ahead of the disciplinary hearing the Claimant’s solicitors wrote to the school and requested that he be allowed legal representation at the hearing as this was ‘an extraordinary case that could result in a lifetime disadvantage’ for their client.

The school replied stating that the Claimant was entitled to be accompanied by a colleague or trade union official only, as in line with their policy and as they had been advised by the Local Authority.

The Claimant appealed the outcome of the disciplinary hearing and again requested and was refused legal representation at the appeal hearing. The Claimant therefore brought judicial review proceedings, alleging that the disciplinary proceedings were unfair and constituted a breach of his right to a fair trial under Article 6 of the European Convention on Human Rights.

Article 6 will be engaged if the effect of disciplinary proceedings, if proved, would be to deprive a person of their right to practice a profession. The Court of Appeal held that the protection afforded by Article 6 will depend on what is at stake for the individual in question, and the key consideration is the gravity of the issue in the case.

The Court of Appeal’s reasoning seems to suggest that the right to legal representation will arise in circumstances where the outcome has the ability to destroy or seriously damage the individual’s right to practice their chosen profession and the potential consequences extend far beyond the loss of employment.

The potential implications of this decision are easy to foresee. Public sector employers will need to amend their policies to reflect that legal representation may in some situations will be permitted. It is unclear what effect the decision will have, if any, on employers in the private sector.

It is hoped that the Supreme Court provides clear guidance as to when and in what circumstances this will be the case which will then be communicated to all our clients