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The right to legal representation in disciplinary hearings

Posted on 19 November 2020

Individuals subject to disciplinary proceedings frequently demand the right to legal representation at a hearing.  Whether it is an employee facing a conduct dismissal, a student threatened with expulsion from school or university or a member of a political party facing a significant sanction, legal representation is often considered by subjects of allegations to be a key way to ensure a case is heard fairly.  In the recent decision of AB v The University of XYZ, the High Court found that a university undergraduate may, in certain circumstances, have a right to legal representation at a disciplinary hearing.  The decision in this case is highly relevant to any disciplinary procedure with a contractual underpinning.   

Case background

The Claimant was, until the conclusion of disciplinary proceedings, a student at a Russell Group university which, for the purposes of privacy is referred to as University of XYZ.  While temporarily studying at a university in Europe as part of the Erasmus exchange programme, the Claimant was accused of sexual assault.  A complaint was raised with University of XYZ who undertook an investigation under their student disciplinary procedures, which were underpinned by the contractual relationship with the Claimant and the university.

When the Claimant was invited to a disciplinary committee to consider the allegation against him, his legal representative requested to attend the hearing and was informed he was only permitted to attend in a support capacity and not as a representative.  Following the disciplinary committee, the university upheld the allegation and the Claimant was expelled.

The Claimant then brought numerous complaints against the University of XYZ for breach of contract, including the refusal to allow legal representation, and sought injunctive relief to reinstate him.  The application for injunctive relief was rejected but a full merits hearing was convened. 

The decision

The Court found that there was an implied contractual term between the student and the university that the disciplinary process would be fair and consistent with the principles of "natural justice".   As a consequence, legal representation could be required when that was necessary for fairness. However, that does not mean the contract was breached unless the failure to permit legal representation was a breach of natural justice on the facts.

Applying guidance set down by the High Court in the case of ex p Tarrant, the Court concluded that the student was entitled to legal representation and, in so doing, applied the following factors:

  1. the seriousness of the charge;
  2. whether any points of law are likely to arise;
  3. the capacity of the individual to understand the case against him or her;
  4. procedural difficulties;
  5. the need to avoid delay; and
  6. the need for fairness between the subject of the complaint and those making allegations.

The Court considered one further factor which had not been identified in Tarrant but it considered relevant, which is the absence of any reconsideration process that would enable the Claimant to be legally represented. 

The Court proceeded to find that it would be unreasonable to deny representation in the context of these particularly serious charges with a sanction that would have significant consequences on the Claimant. The university was ordered to hold a new disciplinary committee with the Claimant afforded the right to legal representation.

The right to legal representation

Many organisations are reluctant to allow legal representation at internal disciplinary hearings.  Organisations fear the proceedings becoming too adversarial, worry there will be an imbalance of power in favour of the subject of allegations unless the disciplinary panel also has legal representation and are concerned by potential delays caused by accommodating outside involvement.

This case is an important reminder that, where there is an express contractual term relating to disciplinary procedures, there is likely to be an implied obligation to ensure that the matter is handled fairly and in accordance with the principles of natural justice.  Requests for legal representation should not be rejected without consideration and, instead, organisations would be well advised to apply the seven factors applied in this case before reaching a conclusion on what is appropriate in the circumstances. 

There may also be an advantage in organisations allowing legal representation in difficult cases because it may make the process less susceptible to appeal and legal challenge, thereby saving time and money in the long term.  If legal representation is permitted, then disciplinary panels should also seek legal advice (whether at the hearing itself or in the background) especially if the allegations are of a serious nature. 

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