Kirk & Ors, R (on the application of) v Action for Children

A disciplinary hearing by a private employer concerning an alleged breach of employment terms is ordinarily a private-law matter and does not constitute the exercise of a public-law function. Article 6 may require an opportunity for legal representation where the disciplinary outcome substantially influences a later determination of a civil right, such as professional employability. That principle does not apply where the disciplinary issue is standalone, does not determine or materially influence a later statutory barring or regulatory decision, and lacks comparable severity. The Safeguarding Vulnerable Groups Act 2006 is not engaged by a hearing concerning conduct unrelated to the employee’s child-related work.

The claimant, a social worker employed by Action for Children, faced disciplinary proceedings for allegedly failing to inform her employer of a child-protection investigation concerning her personal circumstances. She sought an injunction preventing the hearing until related judicial review proceedings against two local authorities were concluded, and a declaration permitting legal representation.

The central issues were whether Action for Children was subject to judicial review in exercising its disciplinary powers, whether the proposed hearing engaged Article 6 of the European Convention on Human Rights, and whether the hearing was sufficiently connected with statutory barring or professional regulatory processes.

1. Nature of the function. The proposed disciplinary hearing concerned the standalone question whether the claimant had breached her employment terms by failing to notify Action for Children of the investigation. The employer was exercising a private-law employment function, not carrying out a public-law function. The Administrative Court therefore could not grant the public-law remedies sought.
2. Article 6 and legal representation. The principles in R (Wright) v Secretary of State for Health [2009] 1 AC 739 and R (G) v X School Governors [2010] EWCA Civ 1; [2010] HRLR 13 concerned disciplinary or preliminary proceedings whose outcome substantially influenced a later decision affecting the person’s ability to practise a profession or remain employed. Article 6 does not invariably require legal representation. The procedural protection required depends on what is at stake and on the relationship between the proceedings and the determination of the civil right.
3. The proposed hearing did not determine whether the claimant had endangered her own child and was not a preliminary step towards placing her name on a statutory barred list. The Safeguarding Vulnerable Groups Act 2006 would operate only in relation to specified conduct connected with child-related work. The alleged conduct in the disciplinary proceedings concerned the claimant’s domestic circumstances and did not engage that statutory process. Nor had it been shown that the hearing would influence any decision of the General Social Care Council.
4. The case therefore fell well short of the seriousness and consequential effect present in R (Wright) v Secretary of State for Health and R (G) v X School Governors. Article 6 did not require legal representation, and there was no proper basis for delaying the disciplinary hearing pending the judicial review proceedings.
5. The injunction application was dismissed. Consequential orders were left for a short telephone hearing or written submissions.

This was a first-instance application. The judgment records that permission for related judicial review proceedings had previously been refused by His Honour Judge Kaye QC on 12 April 2010, with a renewed application pending. The present application for interim relief was heard urgently before that renewed application was listed.