No article 6 right to legal representation at internal disciplinary hearings

29 June 2011

The Supreme Court has today handed down its Judgment in the much anticipated G-v-X case. It makes welcome reading for employers; Article 6 was not found to be engaged in these circumstances.

In January 2010 we issued an Insight concerning the Court of Appeal’s Judgment in G-v-X School, regarding the right to legal representation at internal disciplinary hearings. Further Insights on similar cases were issued in August 2010 and April 2011. The Supreme Court has brought some clarity to this area but concerns do remain, in particular for the NHS in relation to MHPS.

Facts
The Claimant was a part-time teaching assistant at a school. He was dismissed following allegations of inappropriate sexual contact with a work experience student. Given the nature of the allegations, the school was obliged to report its findings to the Independent Safeguarding Authority (ISA), who have the power to determine whether an individual should be prevented from working with children by placing them on a barred list.

The Claimant argued that by denying him the right to legal representation at the disciplinary hearing, the school was denying him the right to a fair hearing under Article 6 of the European Convention of Human Rights (ECHR).

Court of Appeal (CA) Findings
The CA held that the school’s internal process would have a “substantial influence or effect” on the decision making of the ISA, which, therefore, was “determinant” of (the Claimant’s) right to practice his profession. As such, the CA held that Article 6 applied and the Claimant should have been allowed legal representation at the disciplinary hearing. The school appealed to the Supreme Court (SC).

Supreme Court Findings
The SC allowed the school’s appeal by a 4 to 1 majority. In deciding whether Article 6 ECHR was engaged (and therefore the right to be legally represented at disciplinary hearings) the SC drew a distinction between proceedings where:

1. a civil right or obligation (to carry out a profession) is not explicitly determined; and
2. a civil right or obligation (to carry out a profession) is expressly determined.

The SC found that the statute and regulations governing the ISA are clear in that it is for the ISA to form its own independent view on the primary facts of the case based on all of the available information. Accordingly, whilst the ISA may consider the school’s findings, they should not be determinative of the ISA’s decision. Therefore, Article 6 was not engaged at the disciplinary hearing and there was no right to legal representation.

The SC distinguished the G-v-X case from the recent case of Kulkarni-v-Milton Keynes Hospital NHS Foundation Trust, on the basis that the NHS is a “single employer of doctors for the whole country” and that a decision made at an internal disciplinary hearing for a doctor was “dispositive of his right to work in a chosen field”. In any event, NHS procedures allow for legal representation.

Comments
The SC decision appears to swing the pendulum of legal representation back in the employer’s favour. The SC findings are clear in saying that where the right to carry on a profession is determined by a different body, the internal proceedings do not attract the protection of Article 6.

For the NHS in England (under MHPS) and in Wales (under WHC(90)22) legal representation is provided for in any event, to a large extent. However, under Article 6 arguments as to independent panels and other characteristics of a fair hearing may still be in some doubt because of the distinguishing comments that the NHS is, in effect, a single employer and that a decision to dismiss disposes of a civil right. The recent case of Puri–v-Bradford Teaching Hospitals does not arrive at the same conclusion; rather that Article 6 may be engaged but only in exceptional cases and further that MHPS was Article 6 compliant.