Employment vetting is of great interest to information lawyers. Any vetting scheme depends on the systematic sharing of information about individuals. Such schemes will always give rise to difficult questions about fairness. An important recent decision of the Court of Appeal explores some of these issues, in the context of article 6 of the European Convention on Human Rights (ECHR).
Governors of X School v Queen on the application of G [2010] EWCA 1 concerned a teaching assistant at X school (“the employee”), who was accused of having sexual contact with a 15 year old boy on work experience at the school. The school governors conducted a disciplinary hearing, and dismissed the employee. The employee brought judicial review proceedings to challenge the governors’ decisions not to allow him legal representation at the disciplinary hearing or at a forthcoming appeal hearing. He argued that these decisions violated his right to a fair hearing, under article 6 of the European Convention on Human Rights (ECHR). The employee’s claim succeeded at first instance. The Court of Appeal upheld that decision, rejecting the governors’ appeal.
The basis of the employee’s claim was that an adverse finding in the disciplinary proceedings would expose him to statutory procedures that would prevent him from working with children. The Court of Appeal summarised the relevant procedures, by reference to three phases in the employment vetting regime: (i) the “list 99” procedure, under section 142 of the Education Act 2002, prohibiting certain individuals from working in education; (ii) the transitional regime, under the Safeguarding Vulnerable Groups Act 2006 (”the 2006 Act”), whereby after 20th January 2009 certain cases under section 142 were referred to the new Independent Safeguarding Authority (ISA); and (iii) the substantive regime under the 2006 Act, whereby list 99 was replaced with effect from 12th October 2009 by the “children’s barred list”, established under section 2(1)(a) of the 2006 Act.
The Court of Appeal considered whether the school disciplinary proceedings were a determinant of the employee’s civil right to practise his profession as a teaching assistant, so as to engage article 6 of the ECHR. Dismissal by the governors would not itself preclude the employee from practising his profession. A decision to include the employee on a statutory barring list would, however, have that effect. The question was whether the disciplinary proceedings had a substantial influence or effect on the barring proceedings, and therefore on the determination of the employee’s civil right to practise his profession. The answer was yes: therefore, the disciplinary proceedings engaged article 6.
The Court went on to consider whether article 6 required that the employee should be entitled to legal representation in the disciplinary proceedings. Article 6 did not entail a right to legal representation in every case: but in this case there was such a right, given the seriousness of what was at stake for the employee, and given the potential for legal representation to make a difference to the outcome.
The above analysis assumed that the case was to be treated as civil rather than criminal for the purposes of article 6. The employee argued that the case ought to be treated as criminal: given its other conclusions, the Court of Appeal did not need to decide this point.
The governors were a public authority under the Human Rights Act 1998, and therefore subject to the duty under section 6(1) of that Act, not to act incompatibly with Convention rights. The implications of the Court of Appeal’s decisions for private sector employers are uncertain. Such employers are not subject to the section 6(1) duty, and are not susceptible to judicial review. But in an unfair dismissal claim against a private sector employer, the employee might well rely on Governors of X School in order to argue that a failure to permit legal representation would render any dismissal unfair.
The case is of very considerable importance. It illustrates the wide consequences of the vetting scheme introduced by the 2006 Act. The scheme will give rise to a host of difficult legal issues: the Courts are only just beginning to explore them.