The Court of Appeal has reaffirmed the right (previously upheld in March 2009 by the Administration Court) of a school employee (represented by Paul Draycott) facing allegations of sexual misconduct to an enhanced measure of procedural protection afforded by article 6.1 of the European Convention on Human Rights, guaranteeing the right to a fair hearing, which would include the right to legal representation at disciplinary hearings.

The Claimant was employed at a school as a music assistant. Following allegations of acts of abuse of trust with a 15-year-old boy, disciplinary procedures were instigated against him and he was summarily dismissed. The school's disciplinary committee referred the matter to the Secretary of State for Children, Schools and Families, who had the power to make a direction under section 142 of the Education Act 2002 to prohibit a person from working with children in educational establishments.

The claimant requested that his solicitor represent him at his disciplinary hearing and at the later hearing concerning his appeal against his dismissal. The school refused permission on both occasions, stating that an employee could be represented by a colleague or trade union representative but that no other person would be permitted to attend the hearing.

Essentially the Court of Appeal have now upheld the Administrative Court's earlier judgment that on the facts of the case, the civil limb of Article 6 of the European Convention on Human Rights required that the Claimant was entitled to be legally represented at his disciplinary and appeal hearings within the School. The civil right that was engaged was the Claimant's right to practise his profession which would be adversely determined by his addition to List 99 (the register of those deemed unsuitable to work with children) thereby potentially preventing him from undertaking any work either directly or indirectly with children ever again.

The Administrative Court held that the Claimant's internal disciplinary proceedings and the subsequent procedure for a section 142 direction should be regarded as one of the same. However the Court of Appeal have taken a more nuanced approach, holding that where a preliminary decision (in these proceedings, the decision to dismiss) 'has a substantial influence or effect on the later vindication or denial of the claimant's Convention right' the entire process should be treated as part of the same 'contestation' for the purposes of Article 6. That test was met in these proceedings because the Independent Safeguarding Authority ('ISA') will not hold any oral hearing before deciding whether or not the Claimant should be barred, but would merely review the reasons for his dismissal, and the evidence for the same, on the papers. The ISA therefore would not correct any unfairness which would occur during the internal disciplinary proceedings.

Judgment

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