Supreme Court News: employers need not comply with Article 6 in internal disciplinaries

R (G) v Governors of X School concerned a school teacher that was suspended after allegations of inappropriate behaviour towards a pupil.  He requested legal representation at the disciplinary hearing that ensured, but this was refused, so he represented himself and was dismissed. He complained that the inevitable consequence of the disciplinary decision to dismiss him was that he would then be blacklisted from working with children again by the Independent Safeguarding Authority (ISA). He then sought judicial review, and was successful both in the High Court and in the Court of Appeal. However, he lost before the Supreme Court, which by a majority of 4:1 allowed the School Governors’ appeal.

The Supreme Court considered the ECtHR case-law in depth, noting that “it is a sufficient condition for the application of article 6(1) in proceedings A that a decision in those proceedings will be truly dispositive of a civil right which is the subject of determination in proceedings B.” The difficulty is deciding when a decision in the first set of proceedings will be truly dispositive of a second set of proceedings. The Supreme Court accepted that the ECtHR approach was pragmatic and case-sensitive, so it was not possible to draw a hard and fast line. An issue in this case was that the ISA decides cases on paper, without an oral hearing.

Lord Dyson giving the lead judgment concluded: “The school’s disciplinary panel reaches its conclusions as part of an inquiry into a question which is different from that which is addressed by the ISA. More fundamentally, the case workers know that they are required to form their own opinion on the gravity and significance of the facts and on whether it is appropriate to include the referred person in the barred list. There is no reason to suppose that the ISA will be influenced profoundly (or at all) by the school’s opinion of how the primary facts should be viewed.”

Lord Hope agrees, saying: “I think that we can be confident that the governors’ view of the facts will have receded far into the background when the time comes for a decision as to whether the person should be included in the children’s barred list.”

Case report by Barbara Hewson