The right to cross-examination and the right to legal representation in workplace investigations

The Court of Appeal has recently provided clarification on the issue of an employee’s right to be legally represented at a workplace disciplinary proceedings. In McKelvey v. Iarnród Éireann [judgment 31 October 2018] the Court of Appeal overturned a decision of the High Court in finding that there is no automatic right to legal representation on the part of an employee engaged in disciplinary proceedings.

Facts of McKelvey v. Iarnród Éireann

The case concerned an Inspector employed by Iarnród Éireann, Mr McKelvey, who was suspended on pay subject to a disciplinary investigation into an allegation of “Theft of fuel through the misuse of a company fuel card(s), which has resulted in the company suffering a significant financial loss.” Mr McKelvey requested to be permitted legal representation at the disciplinary hearing.

His employer refused to allow him legal representation on the basis that Iarnród Éireann’s disciplinary procedure provided that he may be represented by a fellow employee or a trade union representative; however the procedure does not provide for legal representation.

Decision of the High Court
Mr McKelvey challenged this refusal and successfully secured a High Court injunction restraining his employer from proceeding with the disciplinary hearing without allowing him to be accompanied by legal representatives. Murphy J. held that the “charges levelled against Mr. McKelvey could hardly have been more serious insofar as they put at risk not only his reputation but also his future employment prospects”, and that his right to fair procedures and natural justice would be compromised without the benefit of legal representation.

Decision of the Court of Appeal

Iarnród Éireann appealed the decision to the Court of Appeal. The Court of Appeal found that no entitlement to legal representation arose in this case.

The Court of Appeal and the High Court both agreed that the Supreme Court judgment in Burns v. The Governor of Castlerea Prison [2009] 3 IR 682 is the leading authority on the right to legal representation in disciplinary proceedings. However, the Court of Appeal disagreed with the High Court’s application of the factors for consideration of an entitlement to legal representation in such proceedings, as set out in Burns.

The Supreme Court judgment in Burns held that an employee could be entitled to legal representation in disciplinary proceedings in certain, ‘exceptional circumstances’¹.

In deciding whether ‘exceptional circumstances’ exist, an employer should consider the following factors as set out by Webster J. in R v. Home Secretary EX p Tarrant [1985] 1 QB 251:-

• the seriousness of the charge and the proposed penalty;
• whether any points of law are likely to arise;
• the capacity of the particular person to present his or her own case;
• procedural difficulty;
• the need for reasonable speed in making the adjudication, that being an important consideration; and
• the need for fairness between the different categories of people involved in the process.

While the High Court in McKelvey had focused on the seriousness of the charge and the potential sanctions for Mr McKelvey, the Court of Appeal looked at the factors more broadly and held that no entitlement to legal representation arose. Irvine J. was not satisfied that there were any exceptional circumstances nor any sufficient complexities identified in the case determining that Mr McKelvey could not receive a fair hearing unless he was represented by his lawyers.

Lyons v Longford Westmeath ETB [2018] 29 ELR 35

The High Court in the Lyons case held that a failure to allow legal representation of an employee in a workplace investigation was in breach of the employee’s constitutional rights to fair procedures. This decision caused significant uncertainty as it conflicted with the content of the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000). The Code of Practice provides for the right for an employee to be represented by a colleague of the employee’s choice or a registered trade union representative but not any other person or body unconnected to the enterprise. It is noteworthy that Eager J. did not refer to Burns in his determination in the Lyons case.

The Court of Appeal in McKelvey departed from Lyons in relation to the right to legal representation and confirmed that the Burns test remains the authority for consideration by employers in response to requests for permitting legal representation in disciplinary hearings.

The Court of Appeal did not explicitly examine the second aspect of the Lyons decision, i.e. the right of an accused employee to cross-examine witnesses in disciplinary proceedings, as Mr McKelvey’s employer had confirmed they would facilitate the cross examination of witnesses.

Key points for Employers

While the right to cross examine was not clarified in McKelvey, it stands that an accused employee should always be given the opportunity to challenge the evidence against him or her. The manner in which this may be carried out is still unclear.

However, the decision by the Court of Appeal in McKelvey in relation to legal representation provides welcome clarification for employers that requests from employees for legal representation should only be permitted in “exceptional circumstances”.

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

1^ In Burns v. The Governor of Castlerea Prison [2009] 3 IR 682, Geoghegan J. stated “The cases for which the Respondent would be obliged to exercise a discretion in favour of permitting legal representation would be exceptional. They would not necessarily be related even to the objective seriousness of the charges if the issues of proof were purely ones of simple fact and could safely be disposed of without a lawyer. In any organisation where there are disciplinary procedures, it is wholly undesirable to involve legal representation unless in all the circumstances it would be required by the principles of constitutional justice.”