School staff denied right to lawyer in disciplinary hearings

15th July 2011 at 01:00
Supreme Court rules against automatic entitlement after case of teaching assistant accused of kissing pupil

School staff are no longer automatically entitled to legal representation in school disciplinary hearings, following a landmark ruling involving a teaching assistant accused of massaging and kissing a 15-year-old boy inside a church.

The pupil's parents complained that the employee, who taught music, kissed and had "inappropriate contact" with their son, who was on a work experience placement at the school where the teaching assistant worked at the time.

They showed the headteacher two text messages and an entry in the boy's diary "which appeared to indicate that some form of sexual relationship had developed between the two of them".

The school's child protection officer claimed that the teaching assistant - then aged 22 - admitted kissing the boy, massaging his back and inviting the youngster over to his house.

This was later denied by the employee, who claimed he moved away when the boy tried to kiss him.

A statement from the school governors to the employee said: "The panel are satisfied that inappropriate contact was made with the child whilst the two of you were alone in the church.

"Further, that you sent a text message to the child inviting him to meet with you alone, during your own time, and in doing so had instigated an inappropriate relationship.

"In conclusion, the panel believe that, on the balance of probabilities, it was your intention to cultivate a sexual relationship with the child."

The school governors refused to allow the employee to bring his solicitor into the disciplinary hearing, at which it was decided that his behaviour, alleged to have taken place in 2007, "constituted gross misconduct which warranted his summary dismissal".

He was then sacked - despite the Crown Prosecution Service having already decided not to take action against him.

The employee, who cannot be identified for legal reasons, claimed the refusal to allow his solicitor to attend the hearing was in breach of the European Convention on Human Rights (ECHR), under which an individual is entitled to a fair hearing if the issue in question is so serious it could lead to them being barred from their profession.

Following a judicial review, this position was confirmed by a High Court judge in 2009 and upheld by the Court of Appeal the following year.

But after a further appeal by the school governors, the Supreme Court - the UK's final court of appeal - has ruled that article 6 of the convention does not apply to internal school disciplinary hearings.

James Tait, an employment lawyer at legal firm Browne Jacobson, said: "This decision is highly significant because in cases such as this, there is no entitlement for a teacher to take a lawyer to an internal disciplinary meeting."

Catherine Wilson, a partner at legal firm Thomas Eggar, said the decision would come as a "considerable relief to employers" worried about an "associated increase in costs and time" resulting from solicitors being allowed to attend hearings.

Chris Keates, general secretary of teaching union the NASUWT, said that employees attending disciplinary hearings would still be entitled to be accompanied by a union representative, who could offer a "professional service of representation" and if necessary help them obtain legal advice afterwards.

The court found that the ECHR only applies to hearings of the Independent Safeguarding Authority, which has the power to ban individuals from working with children. The body - created during the course of this case - has yet to make a ruling on the teaching assistant in question.

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