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Right to legal representation

The Court of Appeal has confirmed that an employee may have the right to legal representation at a disciplinary hearing where the hearing could result in them being prohibited from practising their profession. This is based on the right to a fair trial under Article 6 of the European Convention of Human Rights (R (on the application of G) v X School and others).

The Court of Appeal rejected the school’s argument that the disciplinary proceedings were not determinative of the teacher’s ability to continue in his profession. It found that:
• the School Governors had reported the teacher’s dismissal to the Independent Safeguarding Authority (ISA) so that it could determine whether he should be placed onto a register of people prohibited from working with children;
• an ISA listing would fundamentally limit his ability to practise his profession and this meant that the disciplinary proceedings would effectively determine his right to continue working as a teacher; and
• the school’s internal process would have a substantial influence or effect on the ISA’s decision.

The Court of Appeal confirmed that where an individual is subject to two or more sets of proceedings (and one of those could determine whether they will be entitled to practise their profession) that person may be entitled to legal representation in both proceedings (if the result of one would have a substantial influence or effect on the other).

So what do you need to know as an employer?

All employers should therefore ensure that their disciplinary procedures deal clearly with the right to legal representation.

Even where policies exclude legal representation at disciplinary hearings, employers should consider granting a request if the circumstances are sufficiently serious, for example where an employee could face criminal charges or be struck off by their professional body as a result of their alleged misconduct.

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