Disciplinary meetings: limits to right to legal representation

An employee may be entitled to legal representation at a public sector employer's disciplinary hearing where the outcome will have a substantial influence or effect on another body's decision whether to bar the employee from practising his profession. The Supreme Court has agreed with earlier judgments that this is the effect of Article 6 of the European Convention on Human Rights (the right to a fair trial).

However, unlike the Court of Appeal, it considered that a school's disciplinary dismissal decision did not have the required influence over the Independent Safeguarding Authority (ISA)'s decision whether to bar the employee from working with children. This was because the ISA's rules expressly require it to make its own findings of fact and use its own knowledge of additional factors and independent judgment to take its decision. Perhaps surprisingly, the majority of the Supreme Court did not consider that the lack of an oral hearing before the ISA affected this conclusion.

Private sector employers are not directly bound by the European Convention, but there has been concern that unfair dismissal law might be used to make the same argument eg, in relation to financial services employees. Financial services employers may now be more confident in refusing requests for legal representation at disciplinary hearings, given some of the similarities between the FSA's and ISA's role. (R v Governors of X School, SC)