Where disciplinary proceedings could ultimately terminate an employee’s career, it is highly likely that s/he should be entitled to legal representation at the disciplinary hearing. In the case of The Governors of School X v G [2010] EWCA Civ 1, the Court of Appeal found that the employee in question was entitled to legal representation.
 M, a 24 year old teaching assistant, was accused of having kissed and had sexual contact with a 15 year old student, which tended to show an offence under s.16 of the Sexual Offences Act 2003. Charges were not brought by the police; however, the Governors of School X brought disciplinary proceedings against M and dismissed him for a breach of trust. The Governors were obliged to report M to the Independent Safeguarding Authority (“ISA”) who have the power to prohibit M from teaching or working with children. M was told that he was entitled to bring a colleague or a trade union representative. He was not entitled to bring a lawyer to the disciplinary hearing.
The question before the Court of Appeal was whether M was entitled to legal representation at his disciplinary hearing, given that the general rule is that an employee is only entitled to bring a colleague or a trade union representative. 

Article 6 of the European Convention on Human Rights provides that:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”

But goes on to say that anyone charged with a criminal offence is, amongst other things, entitled to legal representation.
Here, the Court of Appeal held that there was every likelihood that the outcome of the disciplinary process, where there has been a finding of abuse of trust by virtue of sexual misconduct, will have a profound influence on the decision-making procedures of the ISA relating to the barred list. And, therefore, the disciplinary proceedings are a determinant of the claimant’s right to practise his profession, and covered by Article 6.
The Court of Appeal held that the jurisprudence was clear that Article 6 “civil” does not necessarily entail a right of representation, but may do so. It goes on to quote the case of International Transport Roth GmbH:
“As I see it, there must be something in the nature of a sliding scale, at the bottom of which are civil wrongs of a relatively trivial nature, and at the top of which are serious crimes meriting substantial punishment. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.”

The Court upheld the High Court’s view that in this case, Article 6 “civil” required that the Claimant should be afforded the opportunity to arrange for legal representation in those proceedings should he so choose, and therefore it was irrelevant whether the disciplinary proceedings brought by the governors amounted to being charged with a criminal offence. “The jurisprudence is increasingly to the effect that what matters is the gravity of the issue in the case, rather than the case’s classification as civil or criminal. That is the primary driver of the reach of the rights which Article 6 confers.”