R v X school

This judgment highlights that employees are not automatically entitled to legal representation at disciplinary hearings where dismissal is the only issue and where the decision as to whether they can continue to practise their profession will be made by another body, not the employer.

Allegations were made that G, a teaching assistant in the music department, had kissed a 15-year-old boy on work experience at the school and had developed some form of sexual relationship with him. The school refused permission for G’s solicitor to represent him at a disciplinary hearing.

G was subsequently dismissed for gross misconduct. The school complied with its legal obligation to notify the Children's Safeguarding Operations Unit – it was then down to the Department for Education to consider whether G should be prohibited from working with children.

The High Court declared that denying the teacher legal representation at the disciplinary hearing breached his right to a fair trial under Article 6 of the European Convention on Human Rights.

The Court of Appeal rejected the school’s appeal. It held that G's right to practise his profession was covered by Article 6. The outcome of the disciplinary process would have a substantial influence on the decision of the Independent Safeguarding Authority (ISA) on whether G should be barred from working with children and so Article 6 applied to the disciplinary hearing.

The Supreme Court has now overturned the Court of Appeal's decision. By a majority, the court held that Article 6 did not apply to the school’s internal procedures. As the ISA carries out its own evaluation of evidence, and decides whether conduct is serious enough to place a person on the barred list, there was no evidence to suggest it could not form its own view of the alleged misconduct because it was profoundly influenced by the school’s decision. There was not a sufficient connection between the disciplinary proceedings and the ISA proceedings.

It’s worth noting that Article 6 would come into play where disciplinary proceedings would determine whether employees could continue to practice their profession.