Thackray Williams

It has recently been held by the High Court in the case of R (on the application of G) v The Governors of X School and Y City Council that in limited situations an employee may have the right to legal representation during an internal disciplinary hearing.

The Facts

The employee was a music assistant at X School when disciplinary proceedings were brought against him, following allegations that he had kissed and sent texts to a 15 year old boy. In accordance with the statutory procedures, the employee was invited to a disciplinary hearing and informed that he could be accompanied by a fellow work colleague or a trade union representative. The employee was informed that if the allegations were proven, the school was obliged to inform the Secretary of State for Education of its findings. The employee’s solicitor requested that a member of the firm attend the disciplinary meeting to represent the employee, however this was denied. The allegations were upheld and the employee appealed the outcome again requesting that he be accompanied to the appeal meeting with his legal representative. This request was refused for a second time and following the appeal meeting the Secretary of State for Education was informed of the employee’s dismissal for gross misconduct.

The Review

The employee brought judicial review proceedings in relation to the schools refusal to allow him legal representation at the disciplinary and appeal hearings.

Following the review, the High Court held that the serious nature of the allegations and the dire consequences of their being proven resulted in the statutory right of accompaniment being inadequate in the circumstances.

What does this mean for employers?

In most cases, the statutory right to be accompanied by a colleague or trade union representative will be sufficient where following the outcome of the disciplinary proceedings there is not a requirement on the employer to refer the matter to another body – which could ultimately determine the employee’s ability to continue with their career.

If following the outcome of the disciplinary proceedings a referral is required to be made to another body and the employee has the opportunity to be legally represented at a hearing held by that body (before a decision is made about the employee’s future) then accompaniment by a fellow colleague or trade union representative to the internal disciplinary meeting, is likely to be sufficient.

If however, following the disciplinary proceedings, the employer is required to refer this to another body that does not have the safeguard of the employee being legally represented before a decision about his future is made, careful consideration should be given to legal representation at an internal disciplinary hearing.

In summary, this case is authority for the proposition that if the substance of a disciplinary matter is so serious that the outcome could determine the employee’s ability to continue in their chosen career, then the right of the employee to a fair trial under the Human Rights Act can give him the right to be legally represented at a disciplinary hearing. 

For more information contact Emma Thompson on 020 8290 0440 or email: emma.thompson@thackraywilliams.com