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Representation at formal disciplinary hearing

An interesting decision occurred recently in relation to representation at disciplinary hearings. The guidelines ensure employees have the right to be accompanied at these meetings, and grievances with a colleague or trade union official certified as competent to attend these meetings. However, the High Court has held that in certain circumstances, an employee has the right to be represented by a lawyer at internal disciplinary hearings when the organisation is involved in dealing with children or vulnerable adults.

The Claimant was employed as a music assistant at a school. The School commenced disciplinary procedures against him for breach of trust as a result of him having kissed a 15year old boy. The Claimant was dismissed.

The School had a duty to report the Claimant to the Secretary of State for Children, Schools and Families to determine whether he should be entered on the register or those who are unsuitable to work with children. The Claimant sought to be represented by his legal representative at the internal disciplinary hearings. The School refused this request and the Claimant sought to judicially review the School, alleging that the refusal to permit legal representation at the internal hearings constituted a breach of Article 6 of the ECHR (right to a fair trial).

The Administrative Court held that:

• the school was required to have regard to Article 6 of the ECHR

• the internal disciplinary and appeal procedures must be viewed as part of the same procedure as the Secretary of State’s procedures relating to entry onto the register of those unsuitable to work with children.

• as the consequences of a dismissal for the reasons given by the School the Claimant should have been entitled to be represented by his legal representatives, and not just a trade union representative or fellow worker

• the potential to claim unfair dismissal in the employment tribunal would not be an adequate alternative remedy.

We do not think this ruling will effect organisations not involved in this type of work, but if you are concerned about the ruling you should speak to one of our Consultants before proceeding to organise a formal hearing.

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