Update: legal representation at internal disciplinary hearings

2 August 2010

Summary
In January we issued an Insight on the Court of Appeal’s judgment in G v X School. G v X followed the earlier case of Kulkarni (specifically under the Human Rights Act, Article 6) and decided that the employee was entitled to legal representation at an internal hearing where the outcome of the hearing is determinative of a right to practise a profession. Understandably this attracted significant comment and concern as to how far this might extend.

G v X has been considered and significantly clarified in the recent case of Martina K v Action for Children and others. The High Court has ruled that the disciplinary decision in question does not engage Article 6 rights; the right to a fair hearing which includes the right to legal representation.

Facts of case
Mrs K is a social worker employed by the charity Action for Children. Whilst working on an agency placement with Redcar and Cleveland BC (Redcar) her former partner made a child protection complaint against her to Middlesbrough BC (Middlesbrough). This complaint was investigated and information was passed to her employer and Redcar; Redcar terminated the placement. Action for Children instigated disciplinary proceedings against her, alleging breach of the terms of employment in failing to inform them of the investigation.

Mrs K brought judicial review proceedings against both Redcar and Middlesbrough alleging that the decisions to pass on information regarding the investigation were unlawful. In the meantime, Action for Children set a date for the disciplinary hearing. Mrs K applied to the High Court for an injunction to prevent them continuing with the disciplinary process until the judicial review was concluded and seeking a declaration that she should be allowed legal representation at the disciplinary hearing under Article 6 of the Human Rights Act (For the purposes of this note we do not address the issue of whether the Human Rights Act can apply directly against a private body and whether such rights can be determined in the Administrative Court as part of judicial review proceedings).

It was argued that the effect of disciplinary action by Action for Children, if it found against her, would be very likely to render Mrs K unemployable as a social worker. Employers in such circumstances have a duty to pass on information to the Independent Safeguarding Authority (ISA) if they think the employee has engaged in conduct which endangers a child or is likely to do so. The ISA is then obliged to include the person on the children’s barred list, if satisfied that person has so engaged in that conduct and it appears appropriate to do so.

Judgment
The High Court decided that the requirement of Action for Children to put Mrs K onto a barring list does not apply in this case. The disciplinary proceedings were not convened to discover whether Mrs K had put her child at risk, rather they were to consider whether she should have informed her employer of the investigation. The disciplinary process was not a preliminary to the placing of Mrs K’s name onto a barring list. Accordingly, the proposed disciplinary hearing was not such as to engage Article 6.

Comments
The decision is not necessarily an end to the debate in this area given its singular circumstances. However, it is a welcome clarification to employers (and perhaps employee associations as well) that legal representation will not be granted in every circumstance of alleged misconduct involving a professional. Employers should nonetheless consider the circumstances of any such request carefully as the costs of injunctive action are substantial.