Exceptional circumstances required to warrant legal representation in a disciplinary hearing
By Deirdre Malone
29 November, 2019
The Supreme Court has helpfully clarified the circumstances in which an employee may be entitled to legal representation during a disciplinary process.
The decision of Clarke CJ in the case of Barry McKelvey –v- Iarnród Éireann affirms the Court of Appeal’s decision that it is only in exceptional circumstances will an employee have the right to legal representation during a disciplinary process. Our previous insight on the matter discusses the Court of Appeal’s decision in greater detail.
In a whistle-stop tour on the history of this case, an employee of Irish Rail was subject to an investigation into the alleged discrepancies over the amount of fuel being purchased on fuel cards. Following a preliminary investigation, Irish Rail commenced its disciplinary process. The employee requested representation by both a solicitor and barrister at the hearing. Irish Rail’s policies did not provide for legal representation at a disciplinary hearing. In the High Court, it also relied on the Code of Practice of Grievance and Disciplinary Procedures in support of its position that this was appropriate and fair.
While the High Court granted the employee’s application to ensure, in its view, a fair hearing, the Court of Appeal did not agree. The Supreme Court has bolstered this view in its Judgement earlier this month.
Supreme Court finding
Clarke J. looked at a number of elements before making his assessment as to whether someone is entitled to legal representation at a hearing. In particular, he reviewed the following broad headings:
- The fundamental principles to consider when making a decision regarding a request for legal representation can be found in the decision of Burns –v- Governor of Castle Rea Prison  (“Burns”).
- Is it appropriate for the Court to intervene before or during a disciplinary process, instead of waiting until the decision is made at the end of the process?
The Burns decision – a starting point
The factors to be taken into consideration, but not to be reviewed independently of each other (as now determined by the Supreme Court to be the “starting point”) includes the following:
- The seriousness of the charge and the potential penalty.
- Whether any points of law are likely to arise.
- The capacity of a particular person to present their own case.
- Procedural difficulty.
- The need for reasonable speed in making the adjudication.
- The need for fairness as between employees but also as between the employee and the employer.
The Supreme Court commented on the decisions and rationale applied in both lower Courts, and separately noted that neither Court had considered the appropriateness of the Court’s intervention prior to the commencement of the disciplinary process.
The Court accepted that there was no reason to depart from the approach adopted in the Burns case and found that there may be circumstances in which the employee might be entitled to legal representation. Essentially, the Court followed the principle identified by Geoghegan J in the Burns’ decision confirming that in any organisation where there are disciplinary procedures in place, it remains “wholly undesirable to involve legal representation unless…it would be required by the principles of constitutional justice”.
It held that it is only in circumstances where legal representation is necessary to ensure a fair process would lawyers be entitled to attend at a hearing. In that, the Court also explored the type of representation and discussed circumstances in which not only a solicitor, but also a barrister might be entitled to attend.
The Court recognises that while a lawyer may add value in terms of potentially better presenting a case on behalf of an employee, it does not mean that the lawyer’s absence would result in an unfair process. In other words, better presentation by a lawyer can never be considered a necessary basis on which to grant legal representation. The necessity must go to the core of the hearing and show that the absence of the lawyer would result in an unfair hearing.
Turning to the second element of the Court’s assessment, we are reminded of the Court’s role in workplace matters. It is only in circumstances where a disciplinary process had “gone off the rails” that the Court should intervene prior to a decision being made. In other words, it must be so clear that no decision at the end of the process is likely to be sustainable in law in order for the Court to interfere in advance of the process completing.
Having considered the two core elements to determine the employee’s right to representation, the Court then considered the heart of this specific case commenting that it was “relatively straightforward”, in that it is effectively an allegation of theft, the possible sanction for which is dismissal. There was nothing overly complex in terms of the allegations put to the employee and, as such, an experienced trade union representative would be well-positioned to represent the employee at a disciplinary hearing.
It is possible that once the process finally commences for this employee, he may still achieve the threshold required to apply for legal representation at that point, but for the moment, the union official is the appropriate grade of representation warranted.
In conclusion, we can now confidently say for the first time since the infamous Lyons –v- Longford Westmeath ETB case in 2018 that it is only in exceptional circumstances will an employee be entitled to legal representation during a disciplinary process.
The test to be applied includes considering the factors outlined in the Burns decision as a starting point. Those factors do not need to be assessed separately, rather, they should be taken into account in “an overall assessment as to whether a fair process can take place without legal representation”.
Separately, the Court found that it should not restrain a disciplinary process prior to its conclusion, unless it is so patently clear that the outcome from the process would not be sustainable in law, and in other words that the process has gone off the rails.
Unfortunately, the issue of cross examination during an investigation/disciplinary hearing remains unclear following the Lyons case. Employers should still proceed with caution as regards receiving any requests for rights to cross-examination during such a process.
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