Legal representation in Internal Disciplinary Proceedings

On 11 November 2019, the five-judge Supreme Court ruled in the case of McKelvey v Iarnród Éireann^[1]on the issue of legal representation at internal disciplinary hearings.  The Court found that the right to legal representation in internal disciplinary proceedings will only be required in ‘exceptional circumstances’ and therefore dismissed the employee’s appeal.    

Background

The facts relating to the initial disciplinary hearing are relatively well-known at this stage.  Mr McKelvey was a Per Way Inspector of Iarnród Éireann (the “Company”).  As part of that role, he was provided with fuel cards to facilitate the refuelling of company vehicles and machinery.  In July 2016, issues arose in respect of the levels of expenditure on the fuel cards in the division in which Mr McKelvey worked.  Mr McKelvey was interviewed as part of an investigation, which thereafter led to him being suspended.  Disciplinary proceedings commenced against him in respect of the charge of theft of fuel through the misuse of a company fuel card.

Mr McKelvey requested that he have legal representation at the disciplinary hearings, however, this request was rejected by the Company whose policy specifically provided for a right to representation by a fellow employee or trade union representative.  Mr McKelvey would have had a trade union representative for the purpose of the hearings. 

Supreme Court decision

This case has already been to the High Court and the Court of Appeal, and has now been decided at the Supreme Court.

A number of note worthy points were made in the Chief Justice’s judgment.  Notably, Clarke J’s view was that it would need to be shown in the circumstances that legal representation would be required to ensure a fair process – not merely that there is some possible advantage to the employee in having a legal representative in the hearing.

It was considered that whilst the evidence relating to Mr McKelvey’s allegations may have been slightly complex, the allegations against him were fairly straightforward.  The procedures were found to be well-established and known to an experienced trade union official.  In essence, his view was that there was nothing in this case which led him to believe that an experienced trade union official would not be sufficient to secure a fair process.

The Supreme Court therefore dismissed Mr McKelvey’s appeal and held that he was not entitled to legal representation in this case.

Key Take Away Points

The general position therefore is that an employee will only be entitled to legal representation in “exceptional circumstances”.  Therefore in situations where an employee requests legal representation, an employer should consider the following before deciding whether to permit legal representation or not:-

• The seriousness of the charge and the potential penalty
• Whether any points of law are likely to arise
• The capacity of a particular employee to present his or her own case
• Procedural difficulty
• The need for reasonable speed in making the adjudication, that being an important adjudication
• The need for fairness as between the employer and the employee

Conclusion

The judgment in this case will no doubt bring a sigh of relief to employers as it confirms the position that employees do not generally have an entitlement to legal representation in internal disciplinary hearings, and it will only be necessary to allow an employee the right to legal representation in “exceptional circumstances”.

For further information on this topic, please contact Laura Graham at lgraham@reddycharlton.ie

[1] [2019] IESC 79