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Teaching assistant has no right to lawyer

No protection under article 6 at disciplinary hearings

4 July 2011

A teaching assistant who kissed one of his male pupils was not entitled under article 6 of the ECHR to be represented by a lawyer at the disciplinary hearing before the school governors, the Supreme Court has held.

The Court of Appeal held that G, who was aged 19 when he kissed the 15 year old, did have the right to be represented by his solicitor (see solicitorsjournal.com, 26 January 2010).

The school reported G to the secretary of state for children, schools and families, who, under section 142 of the Education Act 2002, has the power to ban him for life from working with children, after taking advice from the Independent Safeguarding Authority. No decision has yet been made.

Giving judgment in R (on the application of G) v the Governors of X School [2011] UKSC 30, Lord Hope said that, if G was allowed a lawyer, there was a “serious risk” that public sector disciplinary proceedings would be turned into “a process of litigation, with all the consequences as to expense and delay that would involve”.

Lord Hope went on: “The burden that this would impose on employers, and its chilling effect on resort to the procedure for fear of its consequences, is not hard to imagine.

“A good indication that it was parliament’s wish to avoid this is to be found in section 10 of the Employment Relations Act 1999 that the employee has a right to be accompanied by an official of a trade union, not by a lawyer.

“To require the person to be provided with legal representation before the governors would go against that intention, and it would have been the wrong remedy.”

Lord Hope said the internal disciplinary proceedings by the school and the barring proceedings before the ISA were “separate and distinct from each other”.

He said ISA caseworkers were obliged under their guidance to make their own assessment of the reliability of evidence.

“They are not judging the case at second hand,” Lord Hope said. “Their concern is with the primary facts of the case, not with any conclusions that the governors may have formed about them.

“They must give an opportunity to the person to make representations as to why he or she should not be included in the list, which may be made by a lawyer on the person’s behalf, and difficult cases may be referred to a specialist for an opinion.

“I think that we can be confident that the governors’ view of the facts will have receded far into the background when the time comes for a decision as to whether the person should be included in the children’s barred list.”

Lord Hope agreed with Lords Dyson, Walker and Brown that the appeal by the school governors should be allowed. Lord Kerr dissented.

“It is precisely because the disciplinary proceedings provide the only occasion when the competing cases can be presented in direct opposition to each other that legal advice at that point is so crucial,” Lord Kerr said.

Martin Warren, head of the HR practice group at Eversheds, said last year’s Court of Appeal decision in the case was greeted with “some dismay” in areas of the public sector where employees need authorisation from an external regulator to carry out their chosen profession.

“The effect of the ruling is that employees subject to approval by the ISA, such as teachers, will no longer be able to argue that they are entitled to legal representation at internal disciplinary proceedings because of the potential for the ISA to be influenced by the outcome of those proceedings,” he said.

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Local government