Since September 2000 the basic rule has been that a worker (as defined) has the right to be accompanied by a fellow worker or trade union representative at an employer’s internal disciplinary or grievance hearing. The companion does not have the right to answer questions on behalf of the worker but does have the right to put the worker’s case, to sum up that case and to respond on the worker’s behalf to any views expressed at the hearing.
This right to be accompanied is not restricted to the worker who is the subject of the grievance or disciplinary hearing. The statutory wording is wide enough to ensure that any worker who is “required or invited by his employer” to attend such a hearing (perhaps for example as a witness) has the right.
In January 2010 the Court of Appeal held that, in addition to these rights, a worker could in some cases be entitled under the Human Rights Act (applying the European Convention on Human Rights Art. 6 – right to a fair trial) to have legal representation at an internal disciplinary or grievance hearing. This would be so if the outcome of the hearing could be determinative of the worker’s civil right to practise a profession (for example if, as in the case before it, it could lead to an employee’s name being added to the register of those deemed unsuitable to work with children).
In June 2011 the Supreme Court has refined that ruling (R (on application of G) v Governors of X School, 29th June 2011). The Supreme Court has not only confirmed that a worker is not generally entitled to insist on legal representation at an internal disciplinary hearing by an employer, but also has made it clear that it will be a very rare case where he can actually do so. Overruling the Court of Appeal, the Supreme Court held that this was not one of those rare cases. The right to a fair trial under the European Convention on Human Rights will be satisfied if the final determination of a case can be undertaken by an independent tribunal that will make its own findings of fact on the basis of all available material.
In the case in question G, a 22-year-old music teaching assistant, was employed at X school. He was accused of engaging in indecent and improper conduct with M, a 15-year-old boy who was undertaking work experience at the school. G was not allowed to have a solicitor at the internal hearing which followed and was dismissed. He claimed that his rights under the Human Rights Act had been infringed because the school governors’ finding against him was likely to mean that the Independent Safeguarding Authority would place him on “the barred list”, thereby permanently banning him from working as a teaching assistant.
G therefore sought a judicial review of the decision to deny him legal representation. He won both at the High Court and subsequently in the Court of Appeal. However the school pursued the matter to the Supreme Court and has now won its case there. The crucial point concerned whether the disciplinary hearing had amounted to “proceedings the result of which is decisive for private rights and obligations”. The Supreme Court took the view that the Independent Safeguarding Authority’s power to review all the facts before making a barring order plus G’s further right of appeal if it did so were sufficient to protect G’s Human Rights. The school governors’ decision therefore could not be “decisive” for G’s long term rights. Therefore, by a 4 to 1 majority, the Supreme Court found that the governors had acted lawfully when they refused G the right to have legal representation at the hearing before them.
The dissenting Supreme Court judge, Lord Kerr, took the opposite view. He believed that the disciplinary hearing before the school governors represented the only opportunity for the competing cases to be presented in direct opposition to each other and for the evidence to be tested and therefore that G should have been entitled to legal representation at that stage.
The basic principle involved has thus been agreed throughout – but it is now even clearer. Only in very rare cases will an employer’s decision, on its own, deprive a worker of the ability to pursue his profession. Accordingly only in very rare cases will he or she be entitled to insist on having legal representation at the employer’s hearing at which that decision can be made.