The High Court has recently held that employees may be entitled to legal representation during the disciplinary process.
In the case of R (On the application of "G") v The Governors of "X" School and "Y" Council [2009] EWHC 504 (Admin) the High Court debated the well known rule that an employer must allow a worker the opportunity to be accompanied at a disciplinary hearing by a fellow worker or union official.
The Facts
The employee in this case was employed as a music
assistant at a school. Following allegations of an abuse of trust
with an underage male pupil, disciplinary procedures were
instigated against the employee and he was summarily dismissed. The
employee was also told that he would be reported to the Secretary
of State for Children, Schools and Families, on the basis that he
may be deemed unsuitable to work with children.
During the disciplinary process, the school informed the employee that he was not entitled to legal representation and the employee challenged their decision under both the Education Act 2002 and the Human Rights Act 1998.
The Decision
The High Court held on this occasion that, given the
particular facts of this case (and the serious nature of the
allegations), the Human Rights Act 'trumped' the well know
employment rule and the employee had the right to legal
representation at a disciplinary hearing. Essentially, the High
Court decided that, although the disciplinary procedures did not
amount to proceedings in respect of a criminal charge, they were
'civil' in nature and therefore allowed him protection
under the Human Rights Act.
It should be noted that this case did not make reference to an earlier case where the High Court dealt with similar facts but came to the opposite conclusion.
Whilst there are conflicting authorities on representation, the recent case highlights that legal representation during the disciplinary process may be permitted in exceptional circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.