DISCIPLINARY HEARINGS


Should teachers be allowed legal representation at internal


disciplinary hearings? Catherine Wilson looks at what the law says


teachers during 2010 faced disciplinary action for allegations including theft, child protection issues, gross misconduct and, in one case, drugs misuse. This was an increase from 2009 when 45 teachers faced disciplinary action. Against this backdrop it is probably not surprising


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that recent years have seen several conflicting decisions about the rights of teaching staff to have legal representation at internal disciplinary hearings. It is well established that an employee may be


accompanied to a disciplinary hearing by either a colleague or trade union official. The ACAS Code of Practice on Disciplinary and Grievance Procedures states that employees should make a “reasonable request” to their employers to exercise the right to accompaniment. It also says that it would not normally be


reasonable to be accompanied by someone who would normally prejudice or disrupt the meeting. The person accompanying the employee must operate within certain parameters. For example, it is clear that companions can address the meeting but cannot answer questions relating to direct factual evidence on the employee’s behalf. With certain notable exceptions the involvement of lawyers has been stoutly resisted. The legality of this restrictive approach was thrown


into some doubt as a result of the impact of the Human Rights Act 1998 incorporating the European Convention on Human Rights into British law.


Independent thinking The unknown unknowns


IT IS amazing how public examinations seem to be so dominant in education. These sometimes flawed snapshots of pupils’ progress and achievements have become increasingly important as new government accountability measures have been introduced and the bar for university entrance raised ever higher. I recently read a long and complicated article


about performance measures and league tables: the issue of exactly which GCSE examinations and which vocational qualifications should “count” was discussed at length. It was suggested that these tables distorted school performance and that schools sought ways to gain maximum advantage while paying less attention to the educational needs of their pupils. However, nowhere was it proposed


that rather than endlessly tweaking and tuning the tables and including or excluding various measures, we should just abolish them once and for all. England is one of the very few countries


which have league tables and their worth has been hotly disputed. Of course, parents need information about schools, but why not just publish the official figures for each type of examination or qualification as a separate category on each school’s individual website or on a Department for Education website and leave it at that? Examination results are highly


valued, but it is becoming increasingly apparent that their accuracy is not always what it should be. Once again, we, along with a considerable number of other schools, have been plagued by a rogue drama examiner. Girls who have achieved 10 or 11 A* grades in all manner of challenging subjects and in English language and literature have received D, E or F grades for the written component of their drama GCSE – we await the outcome of the mass re-mark with bated breath! Meanwhile the AS drama marking proved no better and module marks have been increased by 20 per cent or more. This is hardly confidence-inspiring! Other examination marks are just plain confusing. In


a GCSE geography examination one module is marked out of 50 and then the score is doubled to provide a


“uniform mark scale” out of 100, in another the mark out of 50 is altered in a more bizarre way – a candidate scoring 38/50 ends up with 70 whereas one with 34/50 is given only 58. Naturally, the awarding bodies don’t have to explain how these mark conversions occur. It happens every year; I remember an A level history of art examination where marks out of 20 were translated in a very odd way, so that 17/20 became 82 per cent and 14/20 sunk to 48 per cent. Donald Rumsfeld would


have a field day with our public examination system – the “unknown unknowns” are everywhere. This year the accuracy of the question papers themselves was called into question, as errors were spotted from all the main examination boards. The precision of the marking is regularly revealed as suspect. The


obfuscation caused by the system of uniform mark scales has led to a greater lack of confidence. Finally, grade inflation is alleged to be rife – how can the examinations be of the same difficulty year-on-year, argue the critics, if more pupils achieve the


top grades? So if the system is so rotten, why do we set such great store by it and why are not just our students but also our schools judged by these results? In the


past, the government has talked of abolishing the target-driven culture; sadly, there is no sign of that happening in education. Yet there is so


much more to education than this. Of course, it is not so easy to measure. However,


we all know that measuring something does not make it grow or develop and that many really good things can’t be measured accurately at all. Surely this is plain common sense? Perhaps it is, but I suspect it is also politically unacceptable. Wouldn’t it be wonderful if common sense prevailed?


• Marion Gibbs is headmistress of the independent James Allen’s Girls’ School in London. Independent thinking returns in two weeks.


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N THE current climate it is perhaps unsurprising that there has been a so-called “tightening up” of HR practice. This in turn has led to increasing numbers of teaching staff facing disciplinary action. For example, in January 2011 Bradford Council acknowledged that a total of 69


Know your rights


Article 6 of the European Convention concerns


the right to a fair trial and provides that everyone is entitled to a “fair and public hearing”. It also states that “anyone charged with a criminal offence has the right to legal representation and to cross-examine witnesses” (Article 6(3)). Judging from the type of allegations described


above, the consequences of an internal disciplinary hearing can be extremely severe for the effected employee and as such the issue of legal representation has been raised. Schools might be aware of the case of R (on the


application of G) v Governors of X School (2011). Disciplinary proceedings were brought against a music assistant at a voluntary aided school, following allegations that he had developed a sexual relationship with a 15-year-old student. The music assistant was notified that he could be accompanied by a fellow work colleague or trade


union official to a disciplinary hearing. If the allegations were proved true, the school was obliged to refer the employee to the Independent Safeguarding Authority, which had the power to bar him from ever working with children again. There was therefore a strong possibility that his future work prospects would be seriously affected. The employee’s solicitor requested that a member of


the firm attend the hearing, to represent the employee. However, this request was denied. The allegations were upheld by the governing body. The employee appealed the outcome, again requesting that he be accompanied to the appeal by his legal representative. This second request was also refused and the employee’s dismissal for gross misconduct confirmed. As such, the employee brought judicial review


proceedings on the grounds that the school’s refusal was a breach of his Article 6 rights. The High Court ordered the allegations be heard by a differently constituted


disciplinary committee, at which the employee was to be given the right to legal representation. The Court of Appeal upheld this decision, but the school appealed to the Supreme Court which allowed their appeal. In principle, the Supreme Court agreed with the


Court of Appeal that there could be situations where the outcome of proceedings (which do not of themselves concern civil rights) would have such a substantial or direct influence upon subsequent proceedings (which did concern civil rights) that protection under Article 6 should be given. However, the Supreme Court took the view that the impact of the school disciplinary panel was not sufficiently great to require Article 6 protection. The Independent Safeguarding Authority would


conduct its investigation and the outcome of the internal school disciplinary hearing was not decisive. The Independent Safeguarding Authority determined the employee’s civil rights and as such there was no entitlement to legal representation. This case is fact-specific and does not lay down


a general rule that Article 6 can never be relevant to an internal hearing. The governing body of X School was not in a position of itself to prevent a member of staff from working in the education sector. That was a decision of the Independent Safeguarding Authority which could decide to add the employee’s name to the register of individuals who are deemed unsuitable to work with children. Schools may still feel it is prudent to offer the option of legal representation to effected staff but there appears to be no obligation to do so. The matter is not yet finally resolved. A so-called


virtual monopoly employer, such as the NHS, might be in a different position. However, at the start of August the High Court in Mattu v University Hospitals Coventry and Warwickshire NHS Trust held that the process of dismissing a doctor did not entitle him to an independent tribunal under Article 6. Dr Mattu remained fully registered and on the


specialist register of consultant cardiologists. It was acknowledged that his ability to secure a competitive post might be impeded because of his career history but his right to practise remained. The situation could be different in the case of a


trainee doctor whose training and very right to practice are integrally linked solely to the NHS as in the case of Kulkarni v Milton Keynes NHS Hospital Trust 2009. The dismissed trainee doctor could not complete his training in the private sector. The post to which he was appointed being an essential part of the process of becoming registered.


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• Catherine Wilson is a partner with Thomas Eggar LLP. Visit www.thomaseggar.com


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