Following the Supreme Court’s decision in R (on the application of G) v The Governors of School X probably not if you’re a teacher in a state school. Doctors in the NHS may be able to.
One of the issues that arises in advising clients on the process is whether the employee should be allowed to bring a lawyer with them into the meeting. There is no statutory legal right to be allowed to do so. The Employment Relations Act 1999 s.10 only provides for a worker to have the right to be accompanied by a trade union official or a fellow worker. It does not cover family members or friends (unless they are within the two allowed categories).
This can be a real problem for employees who are either very senior or in small companies where often there is no one appropriate from within the business to take with them and there is no union. An employee can ask to take a lawyer with them but most employers will refuse. It is also a major issue where the employee is facing career-threatening allegations, such as teachers, doctors or even people regulated by the FSA.
Thanks to the much-maligned Human Rights Act 2000 (“HRA”), the situation is slightly more complicated when the employer is in the public sector. This is because the HRA can be employed against public sector employers but not those in the private sector. In particular Article 6 of the ECHR provides the right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”, often shortened to the right to a fair trial. In Kulkarni v Milton Keynes Hospital NHS Trust  EWCA Civ 789 it was held that a doctor should be entitled to legal representation at a disciplinary hearing if the effect of being dismissed would be to bar the individual from their career.
That view was upheld by the Court of Appeal in R (on the application of G) v The Governors of School X but subsequently rejected by the Supreme Court on a majority decision of 4 -1,who decided that there is no right under Article 6 ECHR to legal representation at a disciplinary meeting where a decision to dismiss could lead to the individual being barred from their profession if the barring decision is sufficiently independent of the dismissal.
In this case G., the employee, was a teaching assistant accused of an inappropriate relationship with a pupil. He was summoned to a disciplinary meeting and refused permission for his lawyer to accompany him. On advice he refused to co-operate with the disciplinary meeting. The school dismissed him and he commenced proceedings for judicial review of the school’s decision to deny him legal representation at the disciplinary hearing. He argued that the decision to terminate his employment prevented him from teaching. Because the Protection of Children Act was involved, the fact of his dismissal had to be passed on to the ISA – Independent Safeguarding Authority – for consideration as to whether he should be banned from working with children. The ISA is a statutory, independent body.
This is where this case and Kulkarni differ. In Kulkarni the employer was the NHS, which is effectively the employer of the overwhelming majority of doctors in the country. A decision to ban him from working in the NHS effectively meant that he could not work again. One decision automatically followed the other. However, in this most recent case the ISA was independent of the school, the decision to bar him was taken entirely independently of the school. The Supreme Court held that that meant he did not need legal advice at the disciplinary because the two processes were independent of each other. The ISA were not bound to bar the teacher just because of his dismissal in those circumstances. Their caseworkers had guidelines to follow when deciding whether to bar or not.
This is a harsh decision. G was faced with serious allegations, which could have led to criminal proceedings as well as the loss of his career.The majority view of the Supreme Court was that the school was only concerned with the issue of his employment and not his civil right to teach or work with children. How can the two be divorced in a case based on facts such as these? I suspect the underlying rationale is that the Supreme Court did not want to see disciplinary proceedings in schools turned into mini-employment tribunals and also sought to preserve ISA’s reputation, but that is a poor rationale for denying individuals proper legal representation in serious cases. Lord Dyson’s lead judgment spent much time discussing the ISA’s procedures, which did not include the right for him to give oral evidence to it. G, on legal advice, did not give his account to the disciplinary meeting, and was dismissed. Despite this the school were satisfied that the allegations were made out and dismissed him. It appears from the judgment that the ISA have not yet made the barring decision but, as Lord Kerr, dissenting from the majority, pointed out it was inconceivable that the ISA would not be heavily influenced by the school’s decision to dismiss;
“Although the actual determination takes place at the point when ISA decides whether to include the respondent on the list, the anterior stage of disciplinary proceedings cannot be left out of account in deciding whether the overall process is fair.“
Exactly so. The number of teachers facing career threatening allegations is, presumably (and hopefully) fairly small, so the floodgates would hardly have opened, if at all, had the Supreme Court upheld the Court of Appeal’s decision. However, it looks like we’re stuck with this decision for some time.