Human rights in some but not all disciplinary hearings at work, rules Supreme Court

R (on the application of G) (Respondent) v The Governors of X School (Appellant) [2011] UKSC 30 – Read judgment / press summary

The Supreme Court has ruled unanimously that Article 6 of the European Convention on Human Rights, the right to a fair trial, is engaged in internal disciplinary proceedings if the will have a “substantial influence” on future proceedings which are likely to determine a civil right.

However, in this case of a teaching assistant sacked for sexual misconduct with a child, the court ruled by a majority that article 6 rights were not available at a school’s internal disciplinary hearing and the man was therefore not entitled to legal representation. This was because the result of the hearing would not have a substantial influence on the secretary of state’s decision whether to place the man on the list of people barred from working with children. Simply, the Independent Safeguarding Authority (ISA) was obliged to make its own independent judgment.

As Martin Downs posted in April, this decision – which supports the previous decision of the court of appeal – will have an important effect on all internal disciplinary hearings held in the public sector, not just those held at schools. It will now be easier for teachers, doctors, dentists, nurses and others to secure the right to legal representation, alongside other rights such as the right to an impartial panel, at disciplinary hearings which will have a substantial influence on their career.

Sexual misconduct

The Respondent to the appeal was a sessional music assistant at a primary school when a complaint was made during his term of employment that he had kissed and had sexual contact with a 15-year-old work experience boy. The Governors of the School instituted an internal investigation and disciplinary hearing, and dismissed him for breach of trust. He was not permitted to have legal representation at the hearing.

The Governors were also obliged to report the dismissal to the Independent Safeguarding Authority in order that the Respondent could be considered for inclusion on the list of those deemed unsuitable to work with children under the Safeguarding Vulnerable Groups Act 2006.

Fair trial rights?

The following is based on the Supreme Court press summary.

Article 6 of the European Convention on Human Rights provides (in part):

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The key question in disciplinary hearings is what constitutes “determination of… civil rights“. In this case, The Court of Appeal held that where an individual had a civil right being determined in one set of proceedings, he would be able to claim protection under that provision in any other proceeding if the outcome of that other would have a “substantial effect” on the determination of that civil right (see Rosalind’s post). The Supreme Court endorsed that approach.

The meaning of “determination of his civil rights” was considered by the European Court of Human Rights (“ECtHR”) in Ringeisen v Austria (No 1) (1971) 1 EHRR 455. In that case the ECtHR held that it meant “proceedings the result of which is decisive for private rights and obligations”. In Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, the ECtHR contrasted proceedings which are “directly decisive” of the right in question, to which article 6 applies, with those which have a “tenuous” or “remote” consequence. The ECtHR has repeated this ‘mantra’ in a series of further cases: [36]-[59].

The ‘mantra’ has been applied to circumstances in which initial proceedings do not themselves determine a civil right but are closely linked to subsequent proceedings which do. The ECtHR takes a pragmatic, context-sensitive approach to the question of when such a link is established. The case law demonstrates that the factors it takes into account include: whether the first proceedings are in fact dispositive of the later proceedings; how close the link is between the two proceedings; whether the object of the two proceedings is the same; and whether there are policy reasons for holding that article 6(1) should not apply in the first proceedings. In light of this, the test of “substantial influence” formulated by Laws LJ in the Court of Appeal below is a useful formulation and is endorsed: [64]-[69].

In application to the present facts, it is not disputed that the civil right in question is the claimant’s right to practise his profession as a teaching assistant and to work with children more generally. This civil right would be directly determined by a decision of ISA to include him on the children’s barred list. Accordingly, article 6(1) ECHR applies to proceedings before ISA. However, it was not the function of the School’s disciplinary proceedings to determine the civil right in issue. Rather, they were only concerned with the claimant’s employment at the School. Therefore, in and of themselves, the School’s disciplinary proceedings do not engage article 6(1) ECHR.

As regards the establishment of a link such that article 6(1) ECHR applies to the disciplinary proceedings, they do not directly determine or exert a substantial influence over the ISA proceedings. Therefore, in combination with the ISA proceedings, the School’s disciplinary proceedings do not engage article 6(1). In particular this is because ISA is required to exercise its own independent judgment both in relation to finding facts and assessing their gravity and significance. The decision by ISA whether to include an individual on the children’s barred list is only taken following an assessment of the full merits of each case. The absence of an oral hearing does not prevent the ISA from making its own findings of fact and forming its own view independent of the view formed by the School [70]-[83]; [87]-[92]; [97]-[101].

Lord Kerr would have dismissed the appeal. In his view, ISA could and indeed should be substantially influenced by the findings of the disciplinary tribunal. The requirement that it reach its own independent view of the facts is not inconsistent with this. The overall process involving the determination of the claimant’s civil right must be fair. In light of this, it is mistaken to concentrate substantially or exclusively on an individual stage in that process. In this case, the disciplinary proceedings were critical in testing the evidence against the claimant. To recognise his right to be legally represented at that stage is consonant with the proper safeguarding of his article 6 rights: [103]-[119].

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2 thoughts on “Human rights in some but not all disciplinary hearings at work, rules Supreme Court

  1. I believe the dissenting view of Lord Kerr is the correct one. The majority view that the Disciplinary Panel’s finding as not being dispositive seems more theoretical than descriptive of what actually happens in these cases.

    I suspect that an appeal to an Employment Tribunal would have failed in this case despite legal representation being allowed. This suggests that the Disciplinary Hearing’s conclusion was irreversible. It would be simpler (and cheaper) to allow employees legal representation at internal disciplinary hearings in all cases.

    The anomaly whereby HRA applies to state schools but not to independent schools could be disposed of by allowing employees legal representation at disciplinary hearings. It puzzles me why employees are forbidden to be legally represented in the work place. This prohibition is a rogue employer’s charter to abuse or misuse the disciplinary process to further unlawful agendas.This is not theoretical – it happens.

  2. I believe the dissenting view of Lord Kerr is the correct one. The majority view that the Disciplinary Panel’s finding as not being dispositive seems more theoretical than descriptive of what actually happens in these cases.

    I suspect that an appeal to an Employment Tribunal would have failed in this case despite legal representation being allowed. This suggests that the Disciplinary Hearing’s conclusion was irreversible. It would be simpler (and cheaper) to allow employees legal representation at internal disciplinary hearings in all cases.

    The anomaly whereby HRA applies to state schools but not to independent schools could be disposed of by allowing employees legal representation at disciplinary hearings. It puzzles me why employees are forbidden to be legally represented in the work place. This prohibition is a rogue employer’s charter to abuse or misuse the disciplinary process to further unlawful agendas. This is not theoretical – it happens.

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