Court of Appeal confirms teacher's right to legal
representation at internal disciplinary
The Court of Appeal has confirmed that a male teaching assistant
who was accused of kissing and having inappropriate contact with a
15 year old boy is allowed to be represented by a lawyer at the
school's internal disciplinary appeal hearing. G had applied to the
High Court when the school told him he could only be represented at
the disciplinary hearing and appeal by a colleague or trade union
representative. He argued that under article six of the
European Convention on Human Rights (ECHR) he was entitled to be
represented by a lawyer at the appeal because the school's decision
in the disciplinary process was a "determination of his civil
rights" under the ECHR, since a dismissal would be reported to what
is now the Independent Safeguarding Authority (ISA), which has the
power to bar him from teaching. The school argued that the ISA made
its own separate decision and therefore G's civil rights were not
at stake in the disciplinary hearing and appeal.
The Court of Appeal disagreed with the school. It found that the
outcome of the school's disciplinary appeal would have a
substantial influence or effect on the ISA's decision as to whether
or not G should be included on the children's barred list. There
would not be a complete rehearing before the ISA. His right to
practise his profession, which was a civil right to which
article six of the ECHR applied, would be directly at stake in
the ISA's decision making process. Therefore the disciplinary
proceedings would determine his right to practise his profession.
On the facts of G's case, article six entailed the right to be
legally represented at the disciplinary hearing. Although this
decision is somewhat limited to its facts, employers receiving
requests for legal representation at disciplinary hearings should
consider each request and, where the outcome might prevent an
employee from practising their profession, take our advice.
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