Who’s that in the corner?

A frequent question before an internal disciplinary or grievance hearing has been – who may an employee bring with them as supporter/representative.  The general response has been – a colleague or trade union representative – and these are the two categories of representative generally recognised in employment law.

A more difficult question arises where the legal issues are potentially complex and an individual wants to be accompanied by a lawyer – sometimes a family member as well. My advice has generally been not to allow lawyers into the process as it tends to raise the stakes, destroy informality and generally unnerve witnesses and head teachers.

The subject has recently been reviewed by the Court of Appeal, which reached the conclusion that an employee may be entitled to have legal representation at an internal disciplinary or appeal hearing*.  The case involved a teacher in the maintained sector, where Human Rights legislation has direct effect; however the court was concerned that if the internal hearing led to dismissal, that would be reported to the Independent Safeguarding Authority and may result in a placement on the barred list.

The court considered the outcome of the internal hearing would have a substantial influence on the ISA and regarded such an outcome as sufficiently serious to conclude that the employee was entitled to legal representation.

No doubt the teaching unions and solicitors acting for individuals, will regard this as a useful precedent to press for a higher level of representation in some cases.  This should not be dismissed out of hand and in turn will lead schools to consider whether a lawyer should be in attendance, or play more of a guiding role for the school, than previously may have been the case.

*G, R(on the application of) v X School &Ors [2010]CA

John Clarke

Partner

Maitland Walker Solicitors

DD: 01242 246008

Mobile: 07765 243135