A frequent issue that arises in practice is the right to legal representation at workplace investigations and disciplinary hearings.
It is typical for an employee to have the right to be accompanied by a colleague or a trade union representative but the right or other wise to legal representation has been canvassed in the Supreme Court in McKelvey v Iarnród Éireann (2019).
Background to Case
Mr McKelvey was employed by Iarnród Éireann and was subject to disciplinary hearings in relation to irregular purchases on a company fuel card. Mr McKelvey requested legal representation for his disciplinary hearings. but Iarnród Eireann denied this request.
Iarnród Éireann’s Disciplinary Code only allowed an employee to be represented in disciplinary hearings by a fellow employee or trade union representative. This was ostensibly put forward on the rationale that the persons involved will all have a similar level of competence, as they are all aware of the ongoings within their place of employment.
Mr McKelvey sought to bring an injunction in the High Court against these disciplinary proceedings on the basis that he should be entitled to legal representation.
Journey through the Superior Courts
In an unreported judgement, the High Court reached the conclusion that Mr McKelvey was entitled to legal representation in his disciplinary hearing with Iarnród Eireann.
The Court of Appeal reversed the decision of the High Court. The case was then appealed to the Supreme Court, as it was considered to be a matter of general public importance.
Decision of the Supreme Court
In the Supreme Court, Chief Justice Clarke upheld the decision of the Court of Appeal that persons were not automatically entitled to legal representation in employment situations.
He based his decision of the case Burns v Governor Castlerea Prison, where the same question was raised. The point was made that no person is entitled to legal representation in disciplinary hearings unless, “in all circumstances it would be required by the principles of constitutional justice.”
Judgement of Mr Justice Clarke, Chief Justice
Legal Principles
In Burns v Governor of Castlerea Prison, it was held that there was no entitlement to legal representation in disciplinary hearings, unless in certain circumstances where, the process is producing a completely unfair outcome for that person.
Geoghegan J in the Burns case set out a 6 point test that may allow entitlement to legal representation:
- “The seriousness of the charge and the potential penalty;
- Whether any points of law are likely to arise;
- The capacity of a particular prisoner to present his own case;
- Procedural difficulty;
- The need for reasonable speed in making the adjudication, that being an important consideration;
- The need for fairness as between prisoners and as between prisoner officers.”
The court will only intervene in disciplinary hearings if the legal representation is required due to the above factors.
In Burns, Geoghegan states that is “it is wholly undesirable to involve legal representation unless in all the circumstances it would be required by the principles of constitutional justice.” This falls in line with the WRC Code of Practice.
Chief Justice Clarke emphasised that legal representation may only be allowed if it is necessary to ensure a fair legal process. He made it clear that the legal representation is not allowed if it is only adding some value to an already fairly followed disciplinary hearing. It is only permitted when the person is not being represented fairly within their disciplinary hearing.
He also mades the point that disciplinary processes should not be treated as a criminal trial. It is, however, essential that the person subjected to the disciplinary hearing is given the opportunity, along with their trade union representative to challenge the evidence issued at the hearing. In Mr McKelvey’s situation, Chief Justice Clarke was confident that there are no difficulties in law or complicated facts. Therefore, there was no need for him to have legal representation.
Conclusion
The principle as set out does not disentitle legal representation. It will be permissible where it is necessary to ensure a fair procedure and outcome.
Section 42 of the Industrial Relations Act 1990 sets out a code of practice on disciplinary proceedings.
- An employee has the right to know the allegations of which they are accused.
- An employee has the right to respond to and challenge any of the allegations.
- They have the right to be represented but the code does not mention any right to legal representation.
- This is the code of practice the WRC follows.
It is important to note that the decisions in Burns and McKelvey relate to the right to be accompanied by a legal representative in a hearing, and not to the right to seek legal advice to assist you with a disciplinary matter. Again, we have seen in practice employers seek to ignore solicitors’ correspondence and to seek to communicate with the employee solely. The WRC in stated decisions have adopted a dim view of such practices. Being excluded from a meeting and being excluded from being represented in correspondence are distinct matters.
It also does not stop an employer at their discretion allowing a legal representative to attend a hearing.
If you are going through a disciplinary or grievance procedure at work, Setanta Solicitors can assist. Please contact a member of our team to book a consultation with one of our specialist Employment Law solicitors (info@setantasolicitors.ie).
Note: This blog post is for information purposes only and does not constitute legal advice.
