In 2010, the Court of Appeal considered this issue in the case of G, R (on the application of) v X School and others. G was a teaching assistant against whom an allegation was made that he had had sexual contact with a 15 year old boy. The CPS decided against a prosecution. However, governors at the School's ensuing disciplinary hearing, refused to permit him to be accompanied by a solicitor although they did recognise his right to be accompanied by a colleague or trade union representative. He was dismissed for abuse of trust and referred to the Independent Safeguarding Authority (ISA) since incorporated into the Disclosure and Barring Service (the DBS). The National College for Teaching and Leadership (the NCTL) is now responsible for ensuring that in cases of serious professional misconduct, teachers are barred from teaching.
G sought judicial review of the decision to refuse permission for him to have legal representation at the disciplinary hearing, arguing that such refusal violated his rights under Article 6 of the European Convention on Human Rights. G's view was upheld both by the High Court and Court of Appeal. The Court of Appeal essentially decided where the outcome of one set of hearings (the internal disciplinary hearings) would have a substantial influence on the determination of his civil rights in the other he should be able to be represented by a solicitor in both.
The Supreme Court by a majority overturned this decision. The Court considered that the result of the internal hearings would not have a substantial influence on the external decision whether to place G on the list of people barred from working with children, on the basis the external body is obliged to make its own independent judgment. Lord Kerr dissented on the grounds that the external body would be substantially influenced by the findings of the internal disciplinary hearings. He took the view that the overall process must be fair rather than concentrating on individual stages of the process and held that the teaching assistant should therefore have the right to legal representation at the governors' internal disciplinary hearings, given the outcome of those hearings would not be ignored at the likely external hearing.
The Supreme Court did however also rule that Article 6 of the European Convention on Human Rights, the right to a fair trial, is engaged in internal disciplinary proceedings if they will have a "substantial influence" on future proceedings which are likely to determine a civil right.
The right of teaching staff to be represented at internal disciplinary hearings by unions might enable a union solicitor to represent union members who are teachers at crucial internal disciplinary meetings. Teachers not members of unions are therefore potentially put at considerable disadvantage.
The key issue, however, is whether employees whose professional careers might be ended by an independent authority following their dismissal from particular employment, should have the same right to legal representation during the particular employment's internal disciplinary hearings as they have for hearings by an external body.
An external hearing by the professional authority such as the NCTL would be likely to consider points raised during the internal hearings, hence my personal view that there is logic and fairness in schools permitting legal representation in their most serious internal disciplinary hearings where teachers may be dismissed for possible gross misconduct, whether or not the individual is a member of a trade union.