01 873 2134 
The case of Irish Rail and Barry McKelvey (2018) IECA 346 has brought some much needed clarity to the question as to whether employees faced with disciplinary proceedings are entitled to have legal representation at any investigation and disciplinary enquiry. 
The Court of Appeal in this recent Judgment indicated that employees were not entitled to legal representation at the initial investigative process. It went on to consider at some length whether employees should be entitled to legal representation and the right to examine and cross examine witnesses during the course of any subsequent disciplinary enquiry. 
The Court came to the conclusion that unless there was an issue of substantial factual or legal complexity in the proceedings, there was no right to legal representation. It reiterated the findings of the Supreme Court in Burns v Governor of Castlerea Prison (2009) 3 IR 682 in which Geoghegan J approved the criteria set out in Regina v Home Secretary Ex Parte Tarrant (1985) I QB 251, as follows: 
a) In deciding whether or not the Respondent should have legal representation, one should consider the following: 
1) The seriousness of the charge and 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. 
b) Substituting the word “employee” for “prisoner”, Geoghegan J said “I would approve of the list but it is a list merely of the kind of factors which might be relevant in the consideration of whether legal representation is desirable in the interest of a fair hearing. Ultimately the essential point which the relevant governor has to consider is whether from the accused point of view legal representation is needed in the particular circumstances of the case. I would reiterate that legal representation should be the exception rather than the rule.” 
Applying these criteria in McKelvey, the Court of Appeal found that Mr McKelvey did not meet the high standards required to enable him to have legal representation present at the disciplinary hearing. The fact that dismissal was a likely outcome if the case was proven was regarded not to be exceptional. There were no complex points of law, and the factual matrix reasonably simple. 
Mr McKelvey was represented by a trade union, and that was held to be sufficient. 
While there had been some doubt in recent times in the light of certain decisions of the High Court as to whether legal representation should be available at all times to any person accused of a breach of discipline in the workplace, it is now obvious that this is not the case. If the terms and conditions of employment contain a provision to the effect that an employee may only be represented by a non-legal representative, these conditions will, save in the most exceptional circumstances, be upheld. 
It is therefore essential that any employer and/or employee, in considering disciplinary proceedings, take legal advice prior to attending same in order to ensure that  
a) in the case of the employee, they are sufficiently well-armed to be able to deal with the accusations and how they should be met, and  
b) in the case of the employer, that the principles of natural justice and fair procedures are followed.  
It should be noted that the principles of natural justice and fair procedures are still essential components of any disciplinary hearing, and any employer failing to follow those will be found to be in breach of the Unfair Dismissals Act in the event that the employee is dismissed. 
If you have any queries in relation to this blog or any Employment Law matter please contact Hugh O’Neill for expert advice at hugh.oneill@lynchlaw.ie or call 01 873 2134. 
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