Basic issues
When an employee is subject to internal disciplinary hearings, the Employment Relations Act 1999 affords that employee the right to request that a colleague or union representative accompanies himher to a hearing. Legal advisers are not usually permitted as it is seen as excessive and unnecessary.
Interestingly, and following a case in the High Court in March, a claimant teacher argued that the failure to allow him the right to be legally represented at his disciplinary hearings was contrary to his Article 6 right to a fair trial.
The teacher in this case was a music assistant who had been accused of kissing a 15-year-old pupil. The school, on both occasions, denied the claimant the right to be legally represented at his hearings and as such he was dismissed.
The claimant’s case, given the nature of the allegations, was also referred to the Secretary of State to consider whether he should continue to work with children.
The High Court accepted, as a result of the gravity of the situation and the impact on the claimant’s future, that he should have been entitled to legal representation at both hearings.
The High Court held that: “The gravity of the particular allegations made against the claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the claimant’s future working life . are such that he was, and is, entitled to legal representation . On such matters, the claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient.” Reported in The Times on April 24, 2009.
Watch out for
This case is now going to the Court of Appeal. However, in the interim all teachersgovernors should carefully consider any requests made by employees for legal representation at disciplinary hearings. They should also take account of the particular nature of the allegations made against the employee
