In our E-Source update of 27 – 31 July 2009, we commented on the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust in which the Court of Appeal held that, where disciplinary allegations are sufficiently serious so as to put the employee's future career at risk, that employee has the right to be accompanied by a legal advisor at the disciplinary hearing.
In the recent case of R (on the application of G) v X School and others, the Court of Appeal confirmed that the employee teaching assistant was entitled to legal representation at a disciplinary hearing.
Background
In the case of R (on the application of G) v X School and others, the Claimant was a teaching assistant who was dismissed for kissing a 15 year old boy. The governors of the school declined to allow him legal representation at the disciplinary hearing. He claimed that this amounted to a breach of Article 6 of the European Convention on Human Rights (ECHR) which provides for a right to a fair trial.
Decision
The Court held that the extent of protection afforded under Article 6 will depend upon what is at stake. In this case, because of the seriousness of the allegation against the employee and the effect that it may have on his future career, and his eligibility to work with children, Article 6 required that the employee be allowed legal representation at the disciplinary hearing.
Comment
This decision will be of particular interest to public sector employers (in the same way as the Kulkarni decision was). This is because public sector employers have an obligation to ensure that they do not act in a manner that is incompatible with an ECHR right.
In light of these decisions, public sector employers should offer legal representation at disciplinary hearings to an employee who could, as a result of the disciplinary hearing, become unemployable in that role.
TLT