04 Feb Right To Legal Representation At Disciplinary Hearings

The Court of Appeal decision last October in Irish Rail v McKelvey has provided some much needed clarity for HR practitioners on the issue of whether legal representation should be permitted at internal disciplinary hearings, following the confusion caused by the earlier decision of Eagar J in Lyons v Longford & Westmeath ETB.

The Lyons decision had determined that natural justice and constitutional rights should have afforded the employee both legal representation and cross examination facilities at the “fact finding” investigation stage of the process, which was dealing with a bullying and harassment complaint (and at the disciplinary stage if investigation stage was “fact gathering” only).

However, the McKelvey decision has in effect overturned the Lyons decision and re-asserted the widely accepted principle that had previously been set out by the Supreme Court in Burns v Governor of Castlerea Prison, i.e. that an entitlement to legal representation in internal disciplinary hearings only arose in exceptional circumstances. In this case it had been determined by the Supreme Court that a number of factors needed to be considered to ascertain if the right to legal representation arose, namely;

• The seriousness of the charge and potential penalty;
• Any procedural difficulties;
• The need for speed and efficiency in reaching a conclusion;
• Whether any points of law were likely to arise;
• The capacity of an employee to present their case; and
• The need for overall fairness between individuals within the process.

In the McKelvey case, the High Court had determined that the employee could not receive a fair hearing without legal representation at the disciplinary hearing he had been invited to, following an investigation into alleged mis-use of Company fuel cards to purchase fuel by him, in his role as Inspector for Irish Rail. The High Court ruled that the disciplinary hearing should not proceed without legal representation being allowed and referred to the complexity of the charges which were not defined precisely, the potential impact on reputation and future employment prospects and that points of law could arise which would require legal review.

The Court of Appeal disagreed and said that whilst the relevant factors had been identified by the High Court, they had not been applied correctly and there were no “exceptional circumstances” present to support the need for legal representation, and the assistance of Mr McKelvey’s experienced trade union representative was adequate for the disciplinary hearing. The Court of Appeal also noted that the allegation of misuse of the Company’s fuel cards under review was a “straightforward” one and the matters were “far from exceptional”. The Court also said that the involvement of legal personnel in routine disciplinary cases even where criminal proceedings and dismissal were a potential outcome, had the potential to slow down internal processes and impede workplace relationships.

The Court of Appeal further noted that Irish Rail’s Disciplinary Policy and Procedures were fully compliant with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) (currently under review), and it was not considered that the application of their policy would in anyway infringe on a fair enquiry being carried out in adherence to natural justice and constitutional rights.

Therefore, in conclusion the status quo has been returned, and it is only in “exceptional circumstances” that it will be considered that an employee should be afforded legal representation at an internal disciplinary hearing, to ensure that they are afforded a fair hearing, in line with the principles of natural justice.

However, leaving aside the issue of legal representation, employers must always be aware of the absolute need to follow due process in all disciplinary situations and to ensure that employees are afforded their rights such as:

• Right To Know Allegations In Advance
• Right To Be Represented ( colleague or trade union representative)
• Right To Respond
• Right To Appeal

There are many many examples of cases that have resulted in significant compensation being awarded to employees, where a lack of due process has rendered a dismissal unfair, even when a legitimate reason existed to otherwise justify the dismissal.

If you need any professional assistance in dealing with disciplinary matters or an independent person to conduct an investigation or disciplinary hearing, please conduct HR Solutions for further information about their services. Telephone (071) 9642748 or email info@hrsolutiuons.ie.