Is there an Article 6 right to legal representation at disciplinary hearings?

8 July 2011


Is there an Article 6 right to legal representation at disciplinary hearings?

G was employed as a music assistant at X school, where it was alleged that he had developed a sexual relationship with a 15 year old boy. If proved, the school would be obliged to refer G to the Independent Safeguarding Authority (ISA), who has the power to bar him from ever working with children again. G was not permitted to be accompanied by his solicitor at the initial internal hearing, where he asked no questions of the witnesses and gave no responses. Subsequently the governors dismissed G and referred his case to the ISA. G contended that he had an Article 6(1) ECHR right to legal representation, and commenced Judicial Review proceedings. The High Court ordered the allegations be heard by a differently constituted disciplinary committee, at which G was to be given the right to legal representation. The Court of Appeal upheld this decision and the school appealed to the Supreme Court, where the appeal was allowed.

Their Lordships agreed with Laws LJ in the Court of Appeal that there are situations when the outcome of proceedings A (which do not of themselves concern civil rights) will have a substantial or direct influence upon the outcome of proceedings B (which do concern civil rights), and as such the full protection of Article 6 should be given. However, their Lordships found on the facts of this case (Lord Kerr dissenting), that the nexus between the decision of the disciplinary panel and the outcome of the ISA investigation was not sufficiently close so as to engage Article 6. Having considered the statutory scheme governing the ISA, the majority in the Supreme Court ruled that the ISA investigation would not give decisive weight to the outcome of G’s disciplinary hearing, and as such he was not entitled to be legally represented.

G v X School confirms the existing position in relation to Article 6 rights that a case by case approach should be taken, with heavy consideration of the individual facts.  The judgment upholds equally the decisions of cases such as Kulkarni v Milton Keynes NHS Hospital Trust [2009] EWCA Civ 789, (where Article 6 was said to apply to disciplinary hearings), and Puri v Bradford Teaching Hospital NHS Trust [2011] EWHC 970 (Admin) (where it was not).  Indeed, the judgment is very clear that a balancing exercise should be undertaken: the more serious the allegation and the graver the consequences, the greater the need for enhanced protection. The detailed and useful exploration of the Strasbourg jurisprudence in G v X School goes on to conclude that Article 6 rights can absolutely be engaged in disciplinary hearings, provided that the factual correlation between that outcome and the decision of further proceedings is established. 

Unfortunately, this does not provide clear guidance to employers confused over whether or not to allow legal representatives to attend disciplinary hearings. Further, the judgment of Lord Hope argues that to allow legal representation at disciplinary level would have a ‘chilling effect’ on employers, who would fear lengthy and expensive litigation. It is perhaps unfortunate that the judgment in G v X School has been fuelled, in part at least, by policy considerations rather than an objective evaluation as to when Article 6 must apply. The dissenting opinions of Lord Kerr are more persuasive on this point. His Lordship preferred the Court of Appeal’s reasoning, with the link between G’s hearing and the ISA investigation clearly established, as it was in Kulkarni.  

Bethan Lloyd

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