H, R (on the application of) v Hertfordshire County Council

Article 6 does not govern an employer’s internal decision whether to trust an employee or dismiss for misconduct, even where the employer is a public authority. It governs the later judicial or tribunal determination of the employee’s contractual or statutory employment rights. Internal decision-makers must act fairly, but the content of fairness depends on the organisation and the issue being decided. A risk assessment concerning child safety does not determine a civil right, amount to professional disqualification, or violate the presumption of innocence merely because it involves evaluating an unproved allegation. Judicial review remains a remedy of last resort where an employment tribunal can provide an adequate remedy.

The applicant was the head teacher of a specially maintained school for boys with emotional or behavioural problems. After his acquittal of indecent assault, the local authority formed and reaffirmed a belief that he posed a risk to children and communicated that belief within its education and social services functions.

The applicant challenged the authority’s decision and the disciplinary process leading to his dismissal. Maurice Kay J rejected earlier challenges. Turner J later refused permission to apply for judicial review of the reaffirmed risk decision and the disciplinary appeal panel’s decision. The applicant sought permission to appeal, raising issues under Article 6, common-law fairness, the adequacy of reasons, panel composition and the use of a disciplinary protocol.

1. Application dismissed. Permission to appeal was refused, with costs subject to detailed assessment if not agreed.
2. The reaffirmed risk decision could not be reopened on a common-law ground that had previously been available. In any event, Article 6 did not apply. The decision determined no civil right. Its purpose was to enable the authority to take cautious decisions about the safety of children for whom it was responsible. It assessed risk rather than treating the allegation as proved, and therefore did not infringe the presumption of innocence.
3. The disciplinary appeal panel was required to give reasons, but the required degree of specificity depended on the circumstances. The charges contained full particulars and identified the evidence relied upon. The panel’s decision, read with those charges, adequately explained which allegations were proved. The applicant was not entitled to a further explanation of the reasons for the reasons.
4. Article 6 requires an independent and impartial tribunal where a court or tribunal determines an employment dispute or where a state-recognised body can disqualify a person from practising a profession. Albert and Le Compte v Belgium (1983) 5 EHRR 533 illustrated the latter category. It did not make Article 6 applicable to an internal employment mechanism deciding whether an employer should continue to trust an employee.
5. Independence in a domestic disciplinary process did not require absence of every link with the employing authority. It required that the decision-making body be free from dictation or external pressure. No evidence established such pressure. The presence of two advisers and reliance on the disciplinary protocol disclosed no new arguable ground.
6. Judicial review was a remedy of last resort. Any substantial or procedural unfairness could be considered by an employment tribunal, which would provide the independent and impartial determination required by Article 6 and take account of any relevant Article 8 rights.

• Administrative Court: Turner J refused permission to apply for judicial review on 15 June 2001.
• Court of Appeal (Civil Division): Permission to appeal was refused. The application was dismissed with costs.