UK: Employment Briefing - August 2011

Last Updated: 10 August 2011
Article by Brian Gegg

Supreme Court rules on legal representation at disciplinary hearings

The Supreme Court has heard the appeal in R (on the application of G) v Governors of X School [2011] UKSC 30 brought by a School against a decision by the High Court (upheld by the Court of Appeal) that G, a teacher accused of inappropriate sexual misconduct with a pupil, should be entitled to legal representation at his disciplinary hearing.

The Supreme Court has controversially held that Article 6 of the European Convention on Human Rights (ECHR) (the right to a fair and public hearing) was not, on the facts, engaged in relation to the disciplinary proceedings within the School. The Supreme Court accepted that the civil right at issue was G's right to practise as a teacher and work with children. This right would be determined by the Independent Safeguarding Authority (ISA) which would make the decision of whether to place him on the barred list. G had argued that the outcome of internal disciplinary proceedings would directly affect the ISA's decision and for this reason, he should be entitled to legal representation at a disciplinary hearing. However, a majority of the Supreme Court held that the disciplinary proceedings would not have a substantial effect on the ISA proceedings and therefore G was not entitled to legal representation. The majority found that there was insufficient evidence to demonstrate that the ISA would be 'profoundly' influenced by the decision of the disciplinary panel.

This decision demonstrates the difficulty in determining whether the proceedings at which legal representation is requested will, directly or indirectly, be determinative of an individual's ability to carry on his or her profession. Whilst the Court of Appeal's guidelines were endorsed and followed by the Supreme Court, it reached a different decision from the lower court on the facts and only Lord Kerr, dissenting, expressed 'grave misgivings', saying that the ISA would inevitably be influenced by the findings and decision of the disciplinary panel.

Hearsay evidence not admissible

The Administrative Court has held to be 'irrational' and a breach of Article 6 of the ECHR (see case above) a decision by the General Medical Council (GMC) to admit hearsay evidence when such evidence would not be admissible under the criminal laws of evidence. In Bonhoeffer v General Medical Council, Professor Bonhoeffer, a consultant paediatric cardiologist, had been charged by the GMC with impairment of his fitness to practise following allegations of sexual misconduct with young boys in Africa. Following investigation of these allegations by the British police, only one victim, A, supported the allegations so a criminal case was not pursued. The GMC had called for the transcript of A's evidence to be admitted in evidence at a hearing to determine Professor Bonhoeffer's fitness to practise, without calling A.

Professor Bonhoeffer applied for a judicial review of the panel's decision to admit the hearsay evidence at the hearing, citing Article 6 in his support of his claim that there needed to be adequate safeguards in place when admitting such evidence. The Court held that whilst there is no general rule that a person facing disciplinary proceedings may cross examine witnesses, the case should be determined according to the general obligation of fairness imposed on the fitness to practise panel by general common law principles and Article 6. On the facts before them, it would be unfair to admit A's hearsay evidence. The Court emphasised the importance of procedural safeguards at common law and under Article 6. The more serious the allegation, the greater the importance of proper procedural safeguards.

Post transfer dismissal and insolvent employer

In Pressure Cookers Ltd v Molloy and others, the EAT held that where an employee of an insolvent company transferred to another company in the context of a prepack administration sale and was dismissed shortly thereafter, it was the new purchaser company rather than the Secretary of State who had to pay the unfair dismissal basic award and notice pay.

The EAT followed the reasoning in OTG Ltd v Barke that where a transferor company is in administration the regime applicable to 'non terminal' proceedings in the TUPE Regulations will apply. This means that employees will transfer and be protected in the usual way against dismissals by reason of the transfer. In general, certain liabilities may nonetheless be met by the Secretary of State out of the National Insurance (NI) Fund. In this case, the transferee argued that the unfair dismissal, basic award and notice pay liabilities should be met out of the NI Fund. The EAT however highlighted the key words in Article 5.2 of the Acquired Rights Directive (from which the TUPE Regulations are derived) that debts must be 'payable before the transfer'. In other words, under the relevant rules, the debts payable by the Secretary of State must have crystallised before the transfer. It was not within the intention of the Directive or the Regulations to extend the cover of liabilities of certain debts to those arising after the date of transfer. As Mr Molloy had been dismissed after the transfer took place, his basic award and notice pay were payable by the new purchaser.

This decision makes clear at what point the Secretary of State's obligation to pick up liabilities in the context of a pre-pack administration sale cease. As soon as the transfer takes place, all such liabilities fall at the transferee's door.

Rule against cornrows discriminatory

In a case which has attracted much press attention, the High Court held in G v Head Teacher and Governors of St Gregory's Catholic Science College that the school's ban on boys wearing cornrow hairstyles (instituted to reduce the risk of gang culture and ethnic tensions) was indirectly discriminatory on the ground of race and could not be justified.

On the facts, the claimant was a boy who had been accepted at the school before he was aware of the cornrow ban. He was told that he could not attend school until the cornrows were removed. As he was unwilling to comply with the policy, he transferred to another school and claimed indirect race discrimination. He submitted evidence which indicated that some Afro Caribbeans regard the cutting of their hair to be wrong and therefore for culture and ethnic reasons keep it in cornrows. The school argued that this evidence was inadequate to establish a cultural or ethnic need to wear cornrows. The court held that the threshold proposed by the school was too high and that the statutory test of whether there had been a 'particular disadvantage' had been met.

The decision muddies the water in terms of identifying what customs can be regarded as an integral part of one's ethnicity. Where to draw the line between what is simply a habit and what becomes part of the fabric of one's cultural identity will be increasingly difficult. Certainly uniform policies should be revisited to ensure that they do not infringe this more nebulous test.

Caution: avoid mention of legal advice in statements

The Court of Appeal in the case of D (a child) has held that the attachment of privilege to legal advice was waived when that advice was referred to in detail in the contents of a witness statement from one of the parties in child care proceedings. The court ordered further disclosure of the advice.

Mere mention of legal advice will not lose privilege but in this case the substance of the advice was set out.

And finally...

Referral to ECJ in Alemo-Herron

The Supreme Court has made a reference to the ECJ in the case of Parkwood Leisure v Alemo-Herron to ascertain whether the Acquired Rights Directive precludes national courts from applying a 'dynamic' interpretation to regulation 5 of TUPE (automatic transfer of employees and associated rights and liabilities), particularly in relation to the ongoing application of collective agreements.

UK case law had previously indicated that it was possible to adopt a 'dynamic' approach by which a transferee would be bound by terms and pay changes under collective agreements which were agreed some time after the transfer even though neither the employee nor the transferee were involved in the negotiations or parties to the collective agreement at the time changes were agreed. This approach was not followed by the ECJ in Werhof v Freeway Traffic Systems Gmbh & Co KG which indicated that the Acquired Rights Directive does not require a 'dynamic' approach and preferred a 'static' approach.

If the ECJ rules that the 'dynamic' approach is not precluded by the Directive, it is likely that the decision of the Court of Appeal which followed the reasoning in Werhof that the Directive did not bind transferees to any collective agreement made after the transfer, will be overturned and the 'dynamic' approach applied. This will have important ramifications for public sector outsourcings where currently, private sector transferees can ignore collective bargaining terms agreed after transfer.

Opposition to European proposals to increase maternity leave and pay

The UK and a number of other EU member states are intending to block a proposal to increase maternity leave from 18 to 20 weeks on full pay (referred to in an earlier briefing).

Private members' Bill to equalise rights for adoptive and natural parents

The MP, Valerie Vaz, has introduced a private members' Bill calling for an equalisation of adoptive parents' maternity leave, pay and arrangements with those of natural parents. A second reading debate has been tabled for 20 January 2012.

EHRC Response

The Equality and Human Rights Commission (EHRC) has published its response to consultation on reform of its powers and duties. See 'Consultation on our future' 16 June 2011 on the EHRC website.

Response to proposals to reform legal aid

The government has published its response to views on its proposals for reforming legal aid. As many of the original proposals were controversial, the government has been obliged to scale back on its proposed reforms. However there is still a clear intention on the part of the government to make cost cuts.

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