by Breda O'Malley November-21-2019 in Employment Law, Workplace Investigations

Background

The right to representation in internal employment procedures is one which gives rise to much contention with employers. Often times, it may be preferable for a vulnerable employee to have access to a solicitor in the context of an investigation. This may also assist an employer with insulating its process in the context of a challenge at a later stage. This is an issue that needs to be considered on each occasion depending on the individual circumstances. On Monday 11 November 2019, the Supreme Court handed down its decision in Barry McKelvey v Iarnród Éireann/Irish Rail. Chief Justice Frank Clarke found that Mr McKelvey had no entitlement to be legally represented at a disciplinary hearing with his employer, Irish Rail.

 

Key Points from Justice Clarke’s decision

  1. The Supreme Court upheld the Court of Appeal’s ruling and found that the employee had no entitlement to be legally represented at a disciplinary hearing;
  2. The Court was satisfied that the employee had sufficient representation through his experienced trade union representative;
  3. The Court held that the employee did not need legal representation in order for the disciplinary process to be deemed fair and that the formal rules of evidence which govern civil or criminal proceedings did not apply;
  4. On the question of whether Mr McKelvey should be granted an injunction by the High Court in order to prevent the disciplinary hearing from going ahead without legal representation, the Supreme Court held that a court should not intervene in an internal disciplinary process prior to the employer making a finding in the matter, unless something had occurred that was sufficiently serious enough to obstruct the employee’s right to fair procedures and natural justice;
  5. The Court reaffirmed that the approach to the question of legal representation in disciplinary matters is as set out in the Burns1 case; and
  6. The Supreme Court did not reject the notion of legal representation potentially being required in certain circumstances in disciplinary matters and held that, “legal representation is only required as a matter of fairness in exceptional cases”.


Concurring Judgment

In a separate concurring judgment, Mr Justice Peter Charleton also reached the same conclusion as that of the Chief Justice and dismissed the appeal but through a different analysis of the legal route, focusing mainly on Mr McKelvey’s contract of employment and public law:

  1. He ruled that Mr McKelvey was not entitled to legal representation and further stated that there was nothing in his contract of employment which required “criminal trial rights” to apply.
  2. He further found that employment disciplinary or grievance hearings should not move towards a “tribunal of enquiry model” and that, in the event that a complaint is made to the WRC, the burden of justifying dismissal will be on the employer, and the employee may be legally represented at this juncture.

The original authority on whether an employee is entitled to legal representation in internal investigations was decided in Burns which held that there was no right to legal representation at an internal disciplinary hearing other than in exceptional circumstances.

The court held in Burns that the following factors should be considered when deciding if legal representation should be allowed in disciplinary matters:

  1. The seriousness of the charge and of the potential penalty.
  2. Whether any points of law are likely to arise.
  3. The capacity of a particular prisoner to present his own case.
  4. Procedural difficulty.
  5. The need for reasonable speed in making the adjudication, that being an important consideration.
  6. The need for fairness as between prisoners and as between prisoners and prison officers.

The Court noted in Burns that the right to legal representation in internal disciplinary matters was the exception and not the rule.


What does this mean for Employers/Employees?

Although the Supreme Court has clarified the position of an employee’s entitlement to legal representation in McKelvey which is to be welcomed, employers are still advised to exercise a level of caution and to assess internal employee issues, whether investigations or disciplinary hearings, on a case by case basis, to consider whether there may be exceptional circumstances giving rise to the need for legal representation in a particular case.

 

For further information, please contact Breda O'Malley at bomalley@hayes-solicitors.ie or any member of the Employment Law Team at Hayes solicitors.

1 Burns and Another v The Governor of Castlerea prison [2009] 3.1.R. 682

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About the Author

Breda O'Malley
Breda O'Malley

Breda is a partner in the Employment Law Team at Hayes solicitors.

Breda advises on the full range employment issues across a broad range of sectors, for established business clients and senior executives.