The Court of Appeal has today handed down judgment in R(on the application of G) v X School and Y City Council. Please click here to view. John Bowers QC and Katherine Apps were instructed by the School and Council with Tim Kenward from 7 Harrington Street, Liverpool. The Equalities and Human Rights Commission and Department of Education Schools and Families intervened.
G was a teaching assistant at X School. It was alleged that he had had an inappropriate relationship with a child. The nature of the allegations were such that, if found by the School, the School would be obliged to send their file to the Independent Safeguarding Authority (ISA) for the ISA to determine whether G should be entered onto the list of those unsuitable to work with children. The School suspended him and invited him to a disciplinary hearing. G asked for legal representation, which was declined. The disciplinary hearing went ahead and G was dismissed and the file sent to the ISA. G then brought judicial review proceedings claiming that he was entitled to legal representation under Article 6 ECHR.
John Bowers represented the School and Council in the High Court.
The Court of Appeal held that G was entitled under Article 6 to legal representation.
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Unlike the High Court the Court of Appeal accepted the School’s and Council’s arguments that the “civil right or obligation” in question was the right of G to practice his profession; it was not the individual determination of the employment relationship. Listing by the ISA would fundamentally limit an individual’s ability to practice his profession – a teaching assistant would no longer be permitted to work with children. This distinction, however, means that this case potentially means that a smaller number of individuals will be able to claim a right to legal representation at employment disciplinary hearings than the High Court judgment had suggested.
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The Court of Appeal then held that the disciplinary hearing in the school would have a “substantial influence or effect” on the decision making of the ISA as to whether to list G. This was so, notwithstanding the separate process carried out by the ISA and the existence of an independent appeal to the Upper Tribunal. This substantial influence or effect meant that G was entitled to legal representation at the school internal employment disciplinary hearing and appeal hearing.
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In relation to the scope of what the “legal representation” could do at the hearings the Court of Appeal held that it would be unlikely to be rational to “refuse to allow a professional advocate, instructed for the accused party, to ask any questions at all of the complainant if the latter gave evidence before them.”
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Even though the legal regulations surrounding listing by the ISA had been through 2 sets of transitional procedures since the initial decision was made, the question should be determined as at the state of the law now as the ISA had not yet made its determination on listing.
