A very controversial kiss

8 July 2011 by Martin Downs

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

On 4 October 2007 the parents of a 15 year old boy complained that he had been kissed by his 22 year old school sessional music teaching assistant (G).

After an (inconclusive) Police investigation, the school held a disciplinary hearing and dismissed G. They also referred his case to the Secretary of State with a view to him being barred from working with children. The Claimant appealed to the school governors. He also sought to be represented by his solicitor. In this he was successful on judicial review and at the Court of Appeal.

The question for the Supreme Court was, did Article 6 of the European Convention of Human Rights (the right to a fair trial) mean that G was entitled to be legally represented at the hearing before the school governors?

For G the stakes were high. Upon referral, the Independent Safeguarding Authority might determine that he could be placed on the Children’s barred list regulating activities concerning children such as, “any form of teaching, training or instruction of children” (with some caveats) (Safeguarding Vulnerable Groups Act, Schedule 4, para 2(1) (a)) and “any form of care for or supervision of children” (with some caveats) (para 2(1) (b)). What was engaged was his civil right to practise his profession as a teaching assistant. What was controversial was, at what stage were his fair trial rights engaged that would entitle him to legal representation?

The Supreme Court, after a comprehensive survey of the ECHR authorities, agreed unanimously with the test adopted in the Court of Appeal which is that the Claimant’s right was engaged when, “the decision in the relevant proceedings has a substantial influence or effect on the later vindication or denial of the claimant’s Convention right [35].”

At that point unanimity fell away. The majority (4-1) felt that the disciplinary proceedings before the School Governors did not meet the criteria for Article 6 to apply.

It might be considered somewhat surprising that the Supreme Court, having upheld the Court of Appeal’s legal test, overturned its Judgment on the basis that it arrived at different conclusions on the facts, but that was the result.

The majority relied on the declared intentions of the Independent Safeguarding Authority to reach its own conclusions on the facts of a case without being unduly influenced by the conclusions of an internal investigation or the adjudication of a panel – such as one consisting of school governors (as in the case of G).

Where are we left?

Workers still have the right to be accompanied in significant workplace disciplinary proceedings by their Trade Union or a work colleague under s.10 of the Employment Relations Act 1999 (ACAS also provide Guidance).

The result of the Supreme Court decision is a major setback for those who have campaigned for employees to have the right to choose to be represented by a lawyer in serious workplace disciplinary proceedings. The most high profile example of this has been the ingenious litigation strategy run by Doctors to try to win back some of the rights they held under the old permissive NHS arrangements enshrined in HC(90)9 and replaced by Maintaining High Professional Standards in the Modern NHS in 2005- see for example the lecture given by John Hendy QC: HC(90)9 v MHPS: Managers win after doctors’ own goal! 

Up until now the series of cases run by Doctors’ organizations had had some success so that they had started to turn their attention to seeking independent adjudication of workplace disciplinary proceedings against Doctors. However, this had also run into difficulties in R (on the application of Rajiv Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin) Judgment of Mr Justice Blair given on 15 April 2011

Dr Puri has been given permission to appeal to the Court of Appeal. This now looks very unlikely to succeed.

It brings into stark relief the significance of the decision-making processes of bodies such as the Independent Safeguarding Authority. The decision of the Supreme Court is predicated on them being genuinely independent and rigorous. It is likely to face challenges in the future that they do not meet the standards they have set for themselves.

The reasoning of Lord Dyson and Lord Walker were relatively conservative in that they were content to determine the matter because they believes that the ISA was would undertake a de novo review of all the evidence and arrive at its decision independent of the school governors. Lord Hope’s Reasons disclose that he would have gone further, relying on the possibility of G challenging the decision at an Employment Tribunal. Unfortunately that left out of account all the case law which reminds Tribunals not to substitute its view for that of the employer London Ambulance Service v Small [2009] EWCA Civ 220.

Lord Hope also indicated that he would have considered the potential for an appeal to the Upper Tribunal curative of any breach of Article 6, following Albert and Le Compte v Belgium (1983) 5 EHRR 533, para 29; Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2001] IRLR 208; R (Thompson) v Law Society [2004] 1 WLR 2522

There is one curiosity in the reasoning of Lord Dyson in that he seeks to dismiss concerns that the ISA does not operate a procedure of oral hearings with cross-examination. What is lost thereby is reduced by Lord Dyson to the opportunity of seeing the demeanour shown by witnesses which he argues by reference to Lord Bingham’s book, The Business of Judging (2000) is not a reliable pointer to honesty. One only has to contrast that approach with that adopted in the case of R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin) (see this blog’s commentary) to be concerned whether that can be correct.

It leaves one with the uncomfortable conclusion that the outcome might have been different had G been a Consultant Paediatric Cardiologist rather than a sessional teaching assistant.

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