Letting in the lawyers

Many disciplinary procedures rule out the presence of lawyers in hearings. However, as a result of a particularly important case in the High Court, this does not apply if the hearing may lead to a reference to the DCSF or the Independent Schools Association (ISA) and a permanent ban.

The case (R G v Governors of X School) revolved round an accusation of inappropriate touching and a communication designed to foster an inappropriate relationship. The police dropped the case. The school investigated and instituted disciplinary proceedings.

The member of staff asked to bring legal representation but the school refused. He went to the High Court for relief under the Human Rights Act/European Convention on Human Rights on the grounds that this was a criminal case and he was entitled to a fair trial and that if not criminal, it still affected his civil rights since he would be unable to work with children again. He was therefore entitled to a fair hearing. On both grounds he claimed that he was entitled to legal representation. The court rejected the argument that the case was criminal. This is in line with similar rulings over exclusion proceedings. However, it said that he was entitled to legal representation because the consequences were so severe.

The governors had attempted to argue that the disciplinary proceedings were separate from any decision to bar him from teaching and so he could not be entitled to legal representation. The court would have none of it. The reference to the secretary of state and the ban were so much the inevitable consequence of the disciplinary hearing that they should be seen as parts of one process. The school was ordered to hold the hearing again.

The ruling only applies to a situation where a permanent ban is effectively the inevitable consequence of a dismissal. It will not apply to cases of incompetence or ill-health for example. Nevertheless, schools should consider what their disciplinary procedures say and take careful advice before using them.