Court of Appeal in Northern Ireland Decisions

Neutral Citation [2012] NICA 60	Ref:	HIG8381
Judgment: approved by the Court for handing down	Delivered:	27/06/2012
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ AB

Appellant;

-and- DOWN DISTRICT COUNCIL

Respondent.

________ Before: Higgins LJ, Girvan LJ and Weatherup J _________

Higgins LJ (giving the judgment of the Court)

[1] This is an appeal from the decision of Treacy J dismissing the appellant's application for judicial review of a decision of Down District Council declining the appellant, an employee, permission to be accompanied by a legal representative at a disciplinary hearing.

[2] The appellant has been employed by Down District Council as a Recreation Assistant (lifeguard) at Down Leisure Centre since 1 November 2007. By letter dated 18 May 2009 he was requested to attend a disciplinary investigation meeting on 26 May 2009 to enable a statement to be obtained from him concerning a number of allegations made against him. These concerned graffiti relating to members of staff found in the male toilets of Down Leisure Centre. The allegations were –

(i) That he was involved in the malicious damage of council property by creating graffiti in Down Leisure Centre;

(ii) That the content of the graffiti was sexual in nature and amounted to offensive behaviour to both staff and the public;

(iii) That these actions demonstrate a failure of respect for fellow work colleagues as required by the Council's Core Values;

(iv) That these actions are in breach of the Council's Harassment and Bullying Policy.

The letter advised the applicant that as this matter was being dealt with under the Council's Disciplinary Procedure he could be accompanied by an appropriate work colleague or an accredited trade union representative of his choice.

[3] An internal email described the graffiti as being of a "sexual and lewd nature" and that "the content of the matter of the graffiti brings into question the suitability of [a] person in a position of trust working with the public". The appellant relies on these statements as demonstrating the seriousness of the allegations against him.

[4] The appellant sought advice from his solicitor. A request that he be entitled to legal representation at the investigation meeting was declined. He decided not to attend an investigation meeting. Judicial review proceedings were commenced relating to his request for a legal representative to attend the meeting. Leave to bring these judicial review proceedings was refused. Subsequently, he declined to attend an investigation meeting arranged for 10 August 2009.

[5] On 26 August 2009 he received notification to attend a disciplinary hearing at which he could be accompanied by an appropriate work colleague or an accredited Trade Union representative. The appellant requested that a legal representative be allowed to be present at the disciplinary hearing. This was refused by the respondent in a letter to the appellant's solicitor stating that it was "not considered appropriate and will not be permitted" but restating that he was permitted to be accompanied by a work colleague or Trade Union representative.

[6] Subsequently, the appellant was assessed by Joanne Douglas, a Chartered Psychologist. She found him to have an IQ of 66. In a report she stated that the appellant's "thinking and reasoning skills are significantly impaired by the limitations imposed by his intellectual development" and that he "presents as a young man with social and communication difficulties. He is socially naïve and vulnerable". This report was sent to the respondent. Subsequently a report, dated 24 November 2009, was obtained by the appellant's solicitors from a Recruitment Consultant in relation to the employment opportunities of the appellant as a life guard should he lose his present employment with the Council. This report stated, inter alia, that the appellant would not be able to obtain further public sector employment (as he would not be able to get a reference from the Council) and any employment he would be able to obtain in a hotel would probably be part-time. The report went on to state that the appellant suffered from a "learning disability" and, therefore, he should be protected by the Disability Discrimination Act.

[7] On receipt of the two reports the respondent's solicitor replied to the appellant's solicitor by letter dated 3 December 2009 in the following terms –

"We have taken our clients instructions on the contents of your report. The Council were surprised to learn that Ms Douglas had formed the view that [AB] had an IQ within the learning disability range. [AB] discharges a responsible role in the Council and has never raised any suggestion that he has a disability within the terms of the Disability Discrimination Act 1995. Indeed, [AB] has recently obtained a National Pool Lifeguard Qualification which required a demonstrable affinity for cognitive functioning. [AB] has never asked Down District Council for any reasonable adjustment to be made for a disability.

The Council do not necessarily accept the opinion of Ms Douglas that [AB] has a learning disability and may, in due course, require him to attend for appropriate medical assessments. However, for the purpose of the forthcoming disciplinary hearing the Council are prepared to make reasonable adjustments to its customary conduct of hearings on the assumption that [AB] may have a cognitive impairment in the range suggested. [AB] has the right to be accompanied by a trade union representative or colleague. In addition to the Council's customary procedure that person will also be provided (in addition to [AB]), in advance, with copies of all documentation which will be relied upon at the hearing. That person will also have the opportunity to view the CCTV evidence with [AB] in advance of the hearing. This will ensure that any complex issues can be explained to [AB]. The Council note that [AB]'s reading and cognitive skills may be impaired and so the disciplinary hearing will ensure that all documents and visual evidence relied upon at the hearing are, as appropriate, either read to him or described to him by his companion or the panel members. At the outset of any disciplinary hearing participants are advised that a break can be requested at any stage. In this case in addition to the Council's customary procedure, it will be emphasised to [AB] and his companion that the hearing will be punctuated by breaks after the first hour and every hour thereafter, in the absence of any specific request, to prevent fatigue on the part of [AB]. At the conclusion of a hearing it is customary to invite the parties to review any record of the hearing to check for any inaccuracies so that these may be rectified and the parties may sign the record if they wish or they make [sic] take away a copy to review later. In this case it is proposed that any record is read through with [AB] and his companion to confirm his understanding and to clarify any queries before they have an opportunity to consult in private on whether they wish to sign the record or review later.

If there are any other reasonable adjustments which you consider to be necessary to address his apparent cognitive impairments please advise us in writing of same by close of business on 10^th December 2009 and the Council will consider implementing same.

Having read the reports provided by you the Council do not consider that the Applicant's alleged intellectual and cognitive impairments will necessitate the attendance of a legal representative. The Council do not consider that, even if [AB] had a learning disability, the duty to make reasonable adjustments would require that a professional lawyer assist a person with cognitive impairments at a disciplinary hearing. Such deficits as exist in [AB]'s intellectual functioning can be addressed by making modifications and by allowing him to be accompanied by his union representative or a work colleague."

[8] The appellant's Order 53 Statement, dated 18 September 2009, sought an order of certiorari to quash the Council's decision not to permit the attendance of a legal representative at the disciplinary hearing on the following grounds:

(i) In view of the allegation and in light of the consequences, the appellant is entitled to the procedural protection provided for criminal proceedings in Article 6(3) ECHR, including the right to defend himself through legal assistance;

(ii) Alternatively, the proceedings involve a determination of the appellant's civil rights and obligations under Article 6(1) ECHR, so that legal representation is required as a commensurate measure of procedural protection.

Leave to apply for judicial review in these proceedings was granted and the disciplinary hearing was put back to await the outcome.

[9] It was argued before the learned trial judge that while employers' disciplinary hearings do not generally engage Article 6 of the ECHR, there are exceptions to that principle and that the circumstances of this case was such an exception. Reliance was placed principally on two cases – R(G) v Governors X School 2009 EWHC 504 and Kulkarni v Milton Keynes Hospital 2009 EWCA 789. The respondent contended that Article 6 was not engaged and that the two cases relied on could be distinguished. If Article 6 was not engaged it was contended that the matter was not justiciable by judicial review it being a private law matter and if it was, that Article 6 did not require the attendance of a legal representative at the disciplinary hearing. After reviewing the two authorities, as well as Le Compte v Belgium 1981 4 EHRR, the learned trial judge concluded that the key features in these authorities, which engaged Article 6, were absent from the instant case and therefore Article 6 was not engaged. The appellant was in no different position from many others facing dismissal as a result of employers' disciplinary hearings, for whom finding future employment would present hardship.

[10] The appellant appeals against that decision on the following grounds –

1. that the learned trial judge erred in law in holding that Article 6 of the European Convention on Human Rights did not apply to the disciplinary proceedings which the Respondent proposed to hold with regard to the appellant's alleged gross misconduct in work;

2. that the learned trial judge erred in holding that the issues arising regarding the said disciplinary proceedings were non-justiciable.

The sole issue in the appeal (as it was in the court below) is whether Article 6 of the ECHR is engaged in the context of the pending disciplinary proceedings and if it is, whether Article 6 requires that the appellant have the benefit of legal representation.

[11] Miss Danes QC, together with Mr McCann, appeared on behalf of the appellant and Mr McGleenan on behalf of the respondent. The arguments before this court largely mirrored those in the court below. Miss Danes QC stated that the appellant is a fully qualified life guard whose official title is Recreation Assistant (Qualified). It was submitted that the appellant has a civil right to practice as a life guard. Anything which threatened that right to practice or anything which determined whether he could so practice, was within the ambit of Article 6. This civil right extended beyond those engaged in the traditional professions. The nature of the appellant's employment required him to work with the public. A process which determined that he was unsuitable to work with the public would render his chances of working as a life guard 'close to zero'. If the proposed disciplinary proceedings resulted in a finding against him and he was dismissed, he would be unable to work with the public and thereby obtain employment as a lifeguard and therefore the disciplinary proceedings would be determinative of his right to be employed as a lifeguard and he should be entitled to legal representation at those proceedings. It was submitted that support for this approach was to be found in R(G) v Governors of X School, both at first instance and in the Court of Appeal, in Kulkarni v Milton Keynes Hospital and several cases in the ECtHR. The issues in the disciplinary proceedings would be complex, involving circumstantial evidence, CCTV footage, identification and the comparison of handwriting. It would only be fair to permit the attendance of a legal representative. It was no answer that he had a right of appeal to the Fair Employment Tribunal, if dismissed.

[12] In response Mr McGleenan made three basic submissions. Firstly, that the issue of these disciplinary proceedings is a private law matter governed by the disciplinary rules devised by the respondent. As a private law matter it was not amenable to judicial review. Secondly, it was recognised that such disciplinary proceedings can be justiciable, but only where Article 6 of the ECHR is engaged. The onus is on the appellant to demonstrate that Article 6 is engaged, otherwise the claim fails. Treacy J found that the appellant had not fulfilled that onus. Thirdly, that the jurisprudence of the European Court does not hold that legal representation is necessarily required where Article 6 is engaged. It was submitted that the appellant faces a fundamental difficulty, namely establishing the existence of the civil right which he seeks to protect. The right to work in a chosen area, as argued by the appellant, is not a right the ECHR seeks to protect. However, Convention jurisprudence does recognise a civil right to engage in professional practice, through regulated professional bodies where there exists a mechanism to remove the right to practice. An obvious example is the General Medical Council and a medical practitioner. Alternatively, if the appellant was able to establish a civil right protected by ECHR the disciplinary hearing would not be determinative of the appellant's right to be employed as a lifeguard. It is common in every employment situation that a finding of gross misconduct may lead to difficulties in obtaining future employment. Any difficulty or inability to obtain future employment does not alter the case to one which engages Article 6. Furthermore, if Article 6 is engaged, it was submitted that what the Convention requires is fairness, not legal representation. The disciplinary process involves lay personnel not lawyers, so no inequality would be involved. The hearing was not adversarial but disciplinary and was not complex.

[13] The leading case in the UK on the right to legal representation in disciplinary proceedings is now R(G) v Governors of X School. At the time of the hearing before Treacy J judgment had been given in the High Court by Mr Stephen Morris QC, sitting as a Deputy Judge of the High Court. By the time of the hearing before this court judgment had been given in the Court of Appeal (2010) 1 WLR 2218, (Laws, Wilson and Goldring LLJ). That judgment was appealed to the Supreme Court and judgment was given on 29 June 2011 (2011 3 WLR 237). [Following the judgment of the Supreme Court the parties were offered the opportunity to make further oral or written submissions to the Court. In the event neither party chose to do so]. The facts in R(G) bear some similarities with the instant appeal though they are not identical. G was employed as a teaching assistant at a primary school. Allegations were made that he had formed an inappropriate relationship with a 15 year old boy who was undergoing work experience at the school. Disciplinary proceedings before a committee of three governors of the primary school were commenced. G's request that he be allowed legal representation at the committee hearing was refused, though he was advised that he could be accompanied or represented by a colleague or trade union representative. The disciplinary committee summarily dismissed G and referred the matter to the Secretary of State for Schools, Children and Families. By reason of the Education (Prohibition from Teaching and Working with Children) Regulations 2003, the governors of the school were obliged to report the circumstances of the claimant's dismissal to the Secretary of State, so that he might determine whether to direct that the claimant be placed on the statutory register (then known as List 99) of persons prohibited from teaching, or engaging in other work, directly or indirectly involving children, pursuant to s.142 of the Education Act 2002. G appealed to a Governors' appeal panel and a request for legal representation at this appeal hearing was also refused. Judicial review proceedings were commenced challenging the decisions to refuse legal representation before the committee and the appeal panel, on the ground that the disciplinary proceedings involved a determination of G's civil rights and obligations under Article 6 of the ECHR and in view of the seriousness of the allegations and the consequences of a direction under section 142, he should be afforded legal representation. The appeal hearing was adjourned pending the outcome of the judicial review.

[14] At first instance the deputy High Court judge allowed the claim holding that by reason of the serious nature of the allegations of misconduct and the severity of the consequences of a section 142 direction, G was entitled to a commensurately enhanced measure of procedural protection. At paragraph 69 of his judgment he stated -

"69. In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant's future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient."

The Deputy High Court Judge also found (at paragraph 73) that the findings of fact of the disciplinary hearing were, at least, likely to be determinative of the Secretary of State's decision under section 142. The Governors appealed. Between the date of the hearing of the appeal and judgment, the procedure established under section 142 was changed. This reflected the recommendations of the Bichard Enquiry following the murders of two young girls in Soham. List 99 was replaced with the 'Children's Barred List' (the Barred List). The decision whether to include a person in the Barred List would in future not be taken by the Secretary of State but by the Independent Safeguarding Authority (the ISA) acting independently of the Secretary of State, in accordance with a procedure established by the Safeguarding Vulnerable Groups Act 2006. The Governors appeal to the Court of Appeal was dismissed. The Court held, inter alia, that an unfavourable outcome of the disciplinary proceedings would have a substantial effect on the outcome of the Barred List procedure so as to engage Article 6 in the disciplinary proceedings, such that he should be afforded the opportunity to have legal representation. Much of the judgment of the Court (given by Laws LJ, with whom Wilson and Goldring LLJ agreed) is taken up with a determination of the appropriate test to be applied when considering what effect the first (disciplinary) proceedings should have on the second (barring) procedures, in order to engage Article 6 in the first proceedings (or both). In the event it was determined that the appropriate test was that the first proceedings should have a 'substantial influence or effect' on the second proceedings. In the instant case there are no second proceedings or procedures to be considered, only the adjourned disciplinary hearing.

[15] In the course of giving his judgment Laws LJ said it was necessary to be clear as to the civil right which was said to engage Article 6. At paragraphs 26 and 27 he said –

"26. The appeal proceeds on the basis that if ECHR Article 6 applies in the case at all, it is what may be called Article 6 'civil'; Article 6 'criminal' only falls for consideration on the claimant's cross-appeal. Now, little if any light is thrown on the case by the bare assertion that Article 6 'civil' is engaged in the disciplinary process. It is necessary to be clear as to the precise nature of the claimant's civil right said to engage it. I apprehend that the governors and the Secretary of State would contend that the only civil right potentially in play was the claimant's contractual entitlement, so far as it went, to remain in his current employment at X School. If that is right, it is not I think suggested (and if it were, the suggestion would very likely be mistaken) that Article 6 required that the claimant be allowed the opportunity of legal representation in the disciplinary proceedings. We are therefore concerned with the question – the first of the two questions I shall consider – whether the disciplinary proceedings were a determinant of a different civil right, namely the claimant's civil right generally to practise his profession as a teaching assistant. That this is a civil right for the purposes of Article 6 is uncontroversial (it was established by Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1), but it is clearly distinct from the claimant's entitlement to remain in his current employment.

27. If the disciplinary proceedings were a determinant of the claimant's civil right to practise his profession, then the second question arises: did Article 6 in the circumstances require that the claimant be allowed the opportunity of legal representation in the disciplinary proceedings? In connection with this second question I should note that it has not been suggested by the claimant that there would be any entitlement to legal representation in the disciplinary proceedings other than by force of Article 6. I do not for my part think it necessary to investigate the possibility that the common law might itself, on the facts, confer such a right (though I do not mean to imply that in no case would the common law produce that result)."

The first question posed by Laws LJ was - were the disciplinary proceedings a determinant of the claimant's right to practise his profession as a teaching assistant for the purposes of Article 6 of the ECHR? His answer to this question was affirmative. Having considered various cases under Article 6(1) he set out his view of their effect at paragraph 37 of his judgment.

"37. In my view the effect of the learning (and I have already foreshadowed this) is that where an individual is subject to two or more sets of proceedings (or two or more phases of a single proceeding), and a "civil right or obligation" enjoyed or owed by him will be determined in one of them, he may (not necessarily will) by force of Article 6 enjoy appropriate procedural rights in relation to any of the others if the outcome of that other will have a substantial influence or effect on the determination of the civil right or obligation. I do not mean any influence or effect which is more than de minimis: it must play a major part in the civil right's determination. I do not intend a hard and fast rule. Principles developed by the Strasbourg court for the interpretation and application of the ECHR tend not to have sharp edges; as I have said, the jurisprudence is generally pragmatic and fact-sensitive. The nature of the right in question may make a difference. So may the relative authority of courts, tribunals or other bodies playing their respective parts in a case, such as the present, where connected processes touch a Convention right.

38. I apprehend that the approach I have outlined bears comparison with the reference in Ocalan v Turkey (2005) 41 EHRR 985 at paragraph 131 to "a situation where the rights of defence might well be irretrievably prejudiced", noted by the deputy judge below at paragraph 56 of his judgment. Thus it may be useful here to consider whether the claimant's right to practise his profession, which is directly at stake in the barred list procedure, may be irretrievably prejudiced by the disciplinary proceedings. However Mr Bowers objected (skeleton argument, paragraph 65) to any attempt to deploy this formula as guidance in the present case, chiefly on the ground that Ocalan is to be distinguished because it was concerned with the rights of a criminal defendant arising under Article 6(3)(c). But this objection goes more to form than substance. If the ECHR's guarantees are to be practical and effective (and they are worth nothing otherwise), the fact that one proceeding may irretrievably prejudice a civil right directly at stake in another proceeding must at least raise the question whether the protection of Article 6 should attend the first proceeding.

39. But that is not the end of Mr Bowers' case on the appropriate test for the engagement of Article 6 in the disciplinary proceedings. He argues for a general rule to the effect that if, at the end of whatever is the overall process in question, there is a fully Article 6 compliant court or tribunal to give fair consideration to the case, Article 6 is not engaged at the earlier stage(s)."

Laws LJ then considered the cases on which Mr Bowers relied and set out his conclusion at paragraph 42 -

"42. So there may be cases in which the judicial review jurisdiction cannot reach far enough into the earlier, administrative decision to purge it of its want of independence. But however that may be, in every case where the Bryan/Alconbury approach is properly applied, the subjection of the first (administrative) decision to the second (judicial) decision is taken to be sufficient to ensure compliance with Article 6. In my judgment that state of affairs is to be contrasted with the position as between the disciplinary process and the barred list procedure in the present case. The latter in no sense controls the former or corrects its errors. Indeed the claimant's very case is that the former will drive the latter. In my judgment the Bryan/Alconbury line of reasoning is no guidance for the resolution of this appeal."

At paragraph 43 he stated that he did not require to decide whether the disciplinary process and the barred list procedures formed part of one proceeding for the purposes of Article 6. It was enough if there was a sufficiently close nexus between the two processes which would be established if the earlier process had a substantial influence or effect on the other process, applying the test he had earlier set out.

[16] The second question posed was - Did Article 6 require that the claimant be allowed the opportunity of legal representation in the disciplinary proceedings? This was also answered in the affirmative and at paragraph 53 Laws LJ said:

"53. Given my view of the effect an advocate might have in the disciplinary proceedings, and in light of the authorities, I would hold in agreement with the deputy judge below that Article 6 'civil' required that the claimant should be afforded the opportunity to arrange for legal representation in those proceedings should he so choose."

It is clear from paragraph 53 and the preceding paragraphs quoted above that the Court of Appeal considered that the right to legal representation in the disciplinary proceedings arose because those proceedings would have a substantial influence or effect on the outcome of the application of the Barred List procedure, where the teacher's Article 6 civil right to practice his profession would be in issue.

[17] The Governors appealed to the Supreme Court. It was there contended, inter alia, that the Court of Appeal had erred in the following respect –

a) introducing a new test for the engagement of Article 6, namely one of 'substantial influence or effect';

b) in their interpretation of the powers and duties of the ISA and the Upper Tribunal; they were separate processes to that of the school; the ISA was neither substantially influenced nor affected by the determination of the school; the school did not decisively determine whether the claimant was listed on the children's barred list;

c) the Court of Appeal erred in interpreting Article 6 (civil) so as to require legal representation for G.

The Supreme Court allowed the appeal and reversed the decision of the Court of Appeal. The Supreme Court held that the test of substantial influence and effect as determined by the Court of Appeal was an appropriate test in the circumstances. However they went on to state (Lord Kerr JSC dissenting) that ISA was required to make its own findings of fact and bring its own independent judgment to bear on the seriousness of the allegations, before deciding whether to place a person on the Barred List. In those circumstances there was no reason to hold that it would be influenced profoundly or at all, by the School Governors' opinion of the facts emanating from the disciplinary hearing. In those circumstances therefore, the test of substantial influence or effect had not been met. On the test to be applied the Supreme Court held that in the context of two sets of proceedings in which the second only would explicitly determine a civil right, it would be a sufficient reason for Article 6 to apply in the first proceedings, if those proceedings would be truly dispositive of the civil right which was the subject of the later proceedings (the first limb) or if the first proceedings would, at least, cause irreversible prejudice in the later proceedings, in effect partially determining the outcome of the later proceedings in the sense that they would have a substantial or profound influence on the determination of the right to practice (the second limb). The court should ask how close the link was between the two sets of proceedings and whether the object of the two proceedings would be the same. Thus the Supreme Court held that the test proposed by Laws LJ was an appropriate one. In G's case the civil right concerned was his right to practice his profession or vocation as a teacher, which would be threatened by his inclusion in the Barred List. The majority of the Supreme Court held that the body determining whether he should be included in the Barred List would not be influenced by the outcome of the earlier Governors' disciplinary proceedings. In the instant case there is only one set of proceedings, namely the disciplinary proceedings instituted by the Council and further proceedings have not been contemplated. However the approach of the Supreme Court to the first set of proceedings in R(G), which are also disciplinary in nature, gives an indication of the minimum required in such proceedings in order to engage Article 6.

[18] The leading judgment in R(G) was given by Lord Dyson with whom Lords Walker, Hope and Brown agreed. In the course of his judgment Lord Dyson identified the issue as being whether the governors' decision not to allow the claimant to have legal representation at the disciplinary hearing violated his rights under article 6. At paragraph 33 he stated that it was common ground that the civil right with which the court was concerned was the claimant's right to practise his profession as a teaching assistant and work with children generally. There was no doubt that this right would be directly determined by a decision of the ISA. The case made on behalf of G was that the disciplinary proceedings would have such a powerful influence on the ISA proceedings that article 6 would be engaged in both of them. At paragraph 34 Lord Dyson stated –

"34. If there is no connection at all between the disciplinary proceedings and the proceedings before the ISA, it is obvious that article 6 has no role to play in the disciplinary proceedings. Ex hypothesi, they have nothing to do with the civil right in question." [my emphasis]

Lord Hope expressed a similar view at paragraphs 87 and 88:

"87. It is quite clear, as Lord Dyson's analysis of the facts shows, that the internal proceedings before the employer and the barring proceedings before the ISA are separate and distinct from each other. Their decisions and procedures are directed to different issues. On the one hand there is the person's right to remain in employment with that employer. If the proceedings result in dismissal, as they did in this case, the decision to dismiss may be challenged in the Employment Tribunal. On the other there is a person's right to engage in activities relating to children more generally. This is the issue which must be determined by the Independent Safeguarding Authority ('the ISA').

89. That is not, of course, an end to the question whether the claimant's article 6(1) Convention rights were engaged at the disciplinary hearing that was conducted by his employer. Taken by themselves, those proceedings did not engage the protections afforded by that article. It was not their function to determine the civil right that was in issue at that stage, which was the claimant's contractual right to remain in his current employment at the school. Nor did any decision taken in those proceedings determine his civil right to practice his profession as a teaching assistant. It has not been suggested that, if the right to remain in his current employment were the only issue, article 6(1) required that the claimant be allowed the opportunity of legal representation in those proceedings. For that to be the case it would have to be shown, as Laws LJ observed in the Court of Appeal, that there was in some sense at least a close nexus between the disciplinary process and the barred list procedures to be conducted by the ISA: [2010] EWCA Civ 1; [2010] 1 WLR 2218, para 28."

It can thus be seen that the Supreme Court looked at the function of both the disciplinary hearing and the ISA procedure in order to determine whether article 6 was engaged. The majority of the Supreme Court was firmly of the view that the function of the disciplinary hearing was not to determine G's civil right to practice his profession as a teacher, but to determine his contractual right to remain in employment with the school. As the function of the disciplinary proceedings was not to determine the civil right alleged, article 6 was not engaged. This is consistent with the view expressed by Laws LJ at paragraph 26 of his judgment, quoted above. Lord Hope commenting on paragraph 53 of the judgment of the Court of Appeal (see above) said at paragraph 95:

"95. ……… Laws LJ's conclusion was that article 6(1) required that the claimant should be afforded the opportunity to arrange for legal representation in the disciplinary proceedings should he so choose: [2010] 1 WLR 2218, para 53. But there is a serious risk that, if that course were to be adopted, disciplinary proceedings in the public sector would be turned into a process of litigation, with all the consequences as to expense and delay that that would involve. The burden that this would impose on employers, and its chilling effect on resort to the procedure for fear of its consequences, is not hard to imagine. A good indication that it was Parliament's wish to avoid this is to be found in section 10 of the Employment Relations Act 1999 that the employee has a right to be accompanied by an official of a trade union, not by a lawyer. To require the person to be provided with legal representation before the governors would go against that intention, and it would have been the wrong remedy. Our decision that the necessary nexus has not been established avoids these very unattractive consequences."

In the instant case, as I have already observed, there is only one set of proceedings to consider. These are the disciplinary proceedings established to consider whether the appellant was responsible for the graffiti found at Down Leisure Centre and if so, what sanction should be applied to him. Miss Danes submitted that the appellant, as a qualified life guard, would be subject to further proceedings should the outcome of the disciplinary proceedings be unfavourable to him.

[19] Miss Danes relied heavily on the Court of Appeal decision in Kulkarni v Milton Keynes Hospital 2009 EWCA Civ 789. In that case a doctor faced disciplinary proceedings following serious allegations made against him. The primary issue was whether the terms of his contract entitled him to legal representation at the disciplinary hearing. The Court concluded that he was so entitled under the terms of the contract. In giving the judgment of the court Smith LJ (with whom Wilson LJ and Potter P agreed) made some brief, but obiter observations, on the other grounds put forward. These grounds related to whether an employer could restrict an employee's right to legal representation as was done in paragraph 22 of the doctor's contract. Smith LJ said that the question which arose "could be framed as a question of natural justice in purely domestic law or of breach of Article 6 rights (if engaged)". Smith LJ noted that in Le Compte v Belgium 1981 4 EHRR the Court had said that article 6 rights were not usually engaged in disciplinary proceedings though they could be in some circumstances, but what those circumstances might be was not explored. At paragraph 65 she said: –

"65. It appears to me that the distinction which the court was drawing was that, in ordinary disciplinary proceedings, where all that could be at stake was the loss of a specific job, Article 6 would not be engaged. However, where the effect of the proceedings could be far more serious and could, as in that case, deprive the employee of the right to practise his or her profession, the article would be engaged.

66. The difficulty is to know where to draw the line. Mr Stafford and Miss Lee both submitted that Dr Kulkarni was facing ordinary disciplinary proceedings brought by his employer and the only effect, if the charge were found proved, would be that he would lose his job. Only proceedings before the General Medical Council can deprive a doctor of the right to practise. But, as Mr Hendy pointed out, the National Health Service is, to all intents and purposes, a single employer for the whole country. Indeed, for a trainee doctor, that is literally true as a doctor cannot complete his training in the private sector. If Dr Kulkarni is found guilty on this charge he will be unemployable as a doctor and will never complete his training. If he applies for any other position he will be obliged to declare the finding against him and the fact of his dismissal. Moreover, submitted Mr Hendy, it is highly likely that the system of 'alert letters' would be operated in this case if Dr Kulkarni were found guilty. An alert letter is a letter warning other NHS employers not to employ the doctor named, who is regarded as presenting an unacceptable risk to patients. The alert letter procedure is currently governed by the Healthcare Professionals Alert Notice Directions 2006.

67. It seems to me that there is force in Mr Hendy's submission and, had it been necessary for me to make a decision on this issue, I would have held that Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS.

68. The next question is whether, in the context of civil proceedings, Article 6 implies a right to legal representation. In my view, in circumstances of this kind, it should imply such a right because the doctor is facing what is in effect a criminal charge, although it is being dealt with by disciplinary proceedings. The issues are virtually the same and, although the consequences of a finding of guilt cannot be the deprivation of liberty, they can be very serious."

[20] Treacy J observed at paragraph 21 of his judgment.

"[21] The obiter observations of the Court indicate that Article 6 might be engaged in some employment cases where the effect of an adverse finding will be a lifetime ban from practising ones chosen profession - in that case where the NHS was a single monopoly employer. Such a finding is plainly in harmony with ECHR decisions such as Le Compte."

Treacy J went on to find that the key features present in cases like Le Compte, R(G) and Kulkarni, namely the 'exclusion from the civil right to practise ones profession' was absent from the instant case. In particular he found there was "nothing equivalent to the professional adjudicatory mechanisms and their capacity to remove an individual's civil right to practice in a given field". In effect he was saying that there was nothing equivalent to the role of ISA in R(G), which did have the right to exclude a person from working in a given area. It was the nature of the NHS as a single national employer which was a crucial factor. If the doctor could not work with the NHS he could not in effect work as a doctor and thereby practice his profession. It is in that context that one has to look at the function of the disciplinary hearing. In R(G) at paragraph 60 of his judgment, Lord Dyson commented on the decision in Kulkarni -

"60. Laws LJ derived support for his test from Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789, [2010] ICR 101. A doctor claimed that he was entitled to legal representation in disciplinary proceedings brought by his employer. Smith LJ (with whom Wilson LJ and Sir Mark Potter P agreed) said obiter at para 67& that she would have held that 'article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS'. She explained at para 66 why article 6 was engaged on the facts of that case. The NHS is, to all intents and purposes, a single employer of doctors for the whole country. If Dr Kulkarni was found guilty of the charge, he would be unemployable as a doctor and would never complete his training. Thus, the internal disciplinary procedure was, as a matter of fact, dispositive of his right to work in his chosen field." [my emphasis]

[21] It cannot be said in the instant case that the internal disciplinary proceedings would, as a matter of fact, be dispositive of the appellant's right to work in his chosen field or have a substantial or profound influence on his right to practice his profession. The outcome, if unfavourable, may influence the appellant's ability to obtain employment in that field, but it will not deprive him of the opportunity. Thus, whether professional or otherwise, the learned trial judge was correct to say that a key feature present in Kulkarni and in the other cases, namely an adjudicatory mechanism, was absent in the instant case. Of greater significance in Kulkarni is the fact that the doctor worked in the National Health Service. Given the dominant position of the NHS within the United Kingdom, if the doctor was barred from the NHS, he would effectively be prevented from working as a doctor anywhere within the UK. Thus it can be said that the internal disciplinary proceedings would be truly dispositive of his Article 6 civil right to carry on his work as a doctor or have a substantial or profound influence on whether he could do so.

[22] In R(G) the Supreme Court emphasised the importance of a pragmatic, context-sensitive approach to the question whether Article 6 would be engaged in initial disciplinary proceedings. In the instant case the court is concerned only with the disciplinary proceedings. It is submitted that an unfavourable outcome in these proceedings would determine a civil right namely the appellant's right to carry on his employment as a life guard. In this regard the court has to consider the nature of the complaints against the appellant and the sanctions available to the employer. An unfavourable outcome may be harmful to the appellant's future employment prospects should he be dismissed. As the learned trial judge observed this is a hazard faced by many who are dismissed. Given the nature of the complaints made and the sanctions available to the employer it cannot be said that an unfavourable outcome in the disciplinary hearing would be truly dispositive of the appellant's civil right to work in his chosen field nor would it have a substantial or profound influence on whether or not he could practice his profession. Neither would it cause irreversible prejudice in the future either generally or in any other proceedings or in any other employment situation.

[23] At paragraph 28 of his judgment the learned trial judge considered the appellant's intellectual capacity and whether such a disabling characteristic could operate to engage on the appellant's behalf, the protection afforded by Article 6 for his civil rights. The learned trial judge found that this personal characteristic could not have a "transpositional effect in terms of what constitutes a civil right". We agree with that conclusion. However the judge went on to say that this characteristic may engage other special protection, for example, under the disability legislation which strengthens the protections for person of impaired intellectual ability. The learned trial judge commented that it would be open to the respondent to allow legal representation as part of the "reasonable adjustments" they might make in fulfilment of their obligations under the Disability Discrimination (Northern Ireland) Order 2006. That might have the effect of averting any further legal challenge and save much needed resources. I would only add, as the judge rightly commented, these are matters entirely for the respondent.

[24] Therefore for all these reasons we conclude that the learned trial judge was correct to rule that Article 6 was not engaged in the conduct of the disciplinary hearing and the appeal is dismissed.