Ireland: The Right To Legal Representation In A Disciplinary Inquiry – The Exception, Not The Rule?

Last Updated: 28 November 2018
Article by Louise O'Byrne and Sally Doyle
Most Read Contributor in Ireland, December 2018

The decision of Eagar J in Lyons v Longford Westmeath Education and Training Board was seen as a dramatic development in some quarters by confirming the right of an employee to legal representation when facing possible dismissal or an adverse impact on his/her reputation.

Cases since Lyons have clarified and limited the scope of the decision by confirming that the right arises at a disciplinary hearing before a final decision on sanction is made. However, a recent decision of the Court of Appeal represents a stark departure from this position.

The Court of Appeal in McKelvey opted to apply the principles set out in Burns v Governor of Castlerea Prison (namely that an entitlement to legal representation exists only in exceptional circumstances) to frame its decision on an employee's right to legal representation in a disciplinary inquiry.

The right to legal representation also arose in a recent Labour Court decision. The Labour Court in Burns v Component Distributors (CD Ireland) concluded that no right to legal representation arises in a redundancy process.

Iarnroid Eireann / Irish Rail v Barry McKelvey

The Court of Appeal ruled that Irish Rail is not required to allow an employee have legal representation before it embarks on a disciplinary inquiry into an allegation of misconduct arising from alleged "theft of fuel" through misuse of a company fuel card. The Court of Appeal in its judgment found the High Court erred in law by granting injunctions restraining the inquiry, until the employee's claimed entitlement to legal representation was agreed to.

The Court held that, on the facts as they stood in May 2017 when Irish Rail initiated the inquiry and refused Mr McKelvey's application for legal aid, he did not require lawyers. There were no special or exceptional circumstances which warranted the High Court finding Mr McKelvey could not get a fair hearing in accordance with natural justice unless he was represented by solicitor and counsel. While the High Court was entitled to have regard to the serious nature of the charge against Mr McKelvey, the potential penalty and potential impact on his reputation, these were matters "far from exceptional" in the context of workplace investigations and not dispositive of his entitlement to lawyers. The Court stated:

"Whilst an employee facing a disciplinary inquiry in respect of alleged misconduct may be at risk of inter alia dismissal from their employment and significant damage to their good name, it should nonetheless generally be possible, save in exceptional circumstances, for such employee to obtain a fair hearing in accordance with the principles of natural justice without the need for legal representation."

The Court stressed that none of the employee's other rights, including to be heard in relation to the allegations and to make representations, were in dispute.

The Court stated that Mr McKelvey could also, at any stage during the inquiry, renew his request to be represented by lawyers should matters emerge which neither he nor his trade union representative could reasonably be expected to deal with without such legal representation.

The Court held that Irish Rail's disciplinary policy and procedures were fully compliant with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) and noted that all disciplinary inquiries must be carried out in a fair manner and in compliance with the requirements of natural and constitutional justice. For the process to meet that standard, it was not necessary, save in exceptional circumstances, for an employee to be legally represented.

The Court was of the opinion that a disciplinary process which routinely involved lawyers would slow down the process, make it more costly and have "significant adverse effects" for the relationship between management and employees and between employees themselves.

Mr McKelvey was an employee of Irish Rail since 1999 and an inspector from May 2013. His responsibilities included managing employees charged with maintaining the Dublin to Cork rail line. As part of that work, he was given fuel cards to facilitate re-fuelling of company vehicles and machinery. Other Irish Rail employees also had use of such cards. Irish Rail began a preliminary investigation in late 2016 after it became concerned about the amount of fuel purchased using fuel cards in Mr McKelvey's division. He was interviewed as part of that investigation and shown spreadsheets relating to purchases made with his fuel card in 2014, 2015 and 2016. He had said some such purchases could have been made using his card without his knowledge and his card may have been taken by another staff member. In March 2017, after he was informed that he was being suspended on basic pay until further notice, the company received letters from his trade union representative and from solicitors challenging the lawfulness of his suspension.

In May 2017, Mr McKelvey was notified that Irish Rail had decided to initiate its formal disciplinary process to inquire into the matter of: "Theft of fuel through the misuse of a company fuel card(s), which has resulted with the company suffering a significant financial loss." He requested an oral hearing and also asked, having regard to the allegation of "theft", that he be allowed to be represented by solicitor and counsel at the disciplinary hearing. He also made various complaints about the procedures followed at that hearing. Mr McKelvey applied to the High Court seeking an injunction to restrain Irish Rail from proceeding with the disciplinary hearing, unless the company agreed to legal representation. The High Court granted these injunctions.

In overturning this decision, the Court of Appeal distinguished the Lyons case on the basis that Lyons involved a workplace investigation and this case related to a formal disciplinary inquiry. Further, it is clear from this judgment that the Court had confidence in Irish Rail's disciplinary procedure. It is likely that if a disciplinary procedure did not comply with best practice, the Court may not make such a definite pronouncement. The Court did not preclude Mr McKelvey from legal representation, by noting that he could renew his request for legal representation at any stage in the course of the disciplinary inquiry.

Brigid Burns v Component Distributors (CD Ireland)

The Labour Court decision in Burns also provides helpful clarification for employers on the scope of the Lyons decision in a redundancy scenario. It should be noted that the Labour Court decision in Burns was published some three weeks before the Court of Appeal decision in McKelvey.

The Labour Court in this case drew a distinction between the case of Lyons and that of Ms Burns, who was made redundant from her job, as credit controller with CD Ireland, in 2016. In Lyons, the employee was "at risk of considerable personal and reputational damage arising from serious alleged internal employment related allegations". However, the circumstances for Ms Burns were "very different" as she was not in any form of disciplinary process and her good name was not in jeopardy. Ms Burns' representative before the Labour Court, appealing a WRC adjudicator decision, claimed that her exit from the company was an unfair dismissal because she was denied a right to legal representation during the redundancy process, not given the right to cross-examine members of management, and not given relevant papers on the redundancy discussion.

By way of background, following a proposal to centralise her employer's finance team to Antrim, Ms Burns' role was at risk of redundancy. She was consulted about this proposal at several meetings. Ms Burns was informed she could bring a colleague or a trade union representative to these meetings. The company representative told the Court that other employees had used SIPTU representatives in grievance matters before. However, Ms Burns had indicated that she did not need representation and had not requested legal representation during the redundancy consultation process.

Ms Burns' representative contended that the company "in not giving her the option to be legally represented [...] was in breach of her constitutional right to fair procedures", and used the Lyons judgment in support of this argument. Her representative said Lyons applied to Ms Burns' claim because "she had a right to earn a living."

The Labour Court discussed the differences between the Lyons case and Ms Burns' case, such as the former being a judicial review before the High Court on the principles of natural justice during a disciplinary procedure. The employee's name in this case "was not in jeopardy", unlike Mr Lyons, and the complainant was furnished with a reference that was "highly complementary" of her. The Court also referred to the Supreme Court judgment in Burns v Governor of Castlerea Prison (2009), that "legal representation should be the exception rather than the rule." The Labour Court concluded by finding that the dismissal of Ms Burns was "wholly redundancy connected"; that the redundancy was genuine; that the employer engaged in an extensive consultation process; and that it explored redeployment options, including allowing the employee to make suggestions as to possible alternative roles she might be considered for.

Conclusion

It is highly likely that the Labour Court decision in Burns may not have been at pains to distinguish the Lyons case had the McKelvey decision been delivered. It is interesting that both McKelvey and Burns rely on the Supreme Court decision of Burns v Governor of Castlerea Prison which dates back to 2009.

Burns can be clearly distinguished from Lyons: While both employees in Lyons and Burns faced dismissal, the dismissal in Burns was by reason of redundancy. There was no disciplinary element to this dismissal and no potential reputational damage to the employee.

While McKelvey provides a precedent for the position that there is no routine right to legal representation, it remains to be seen whether the courts will follow this case or revert to the Lyons principles. As the jurisprudence in this area is not settled, a degree of caution is advised as the goal posts may change again.

Further, it will be interesting to observe what the courts deem amount to "exceptional circumstances" – whether complex facts will amount to exceptional circumstances (although the myriad of factual transactions were not deemed sufficiently complex in the McKelvey case). It would seem that the seriousness of the consequences for the party to the process is not the influencing factor that it was in Lyons. It generally follows that should an allegation of theft be upheld then the most likely sanction would be dismissal. Notwithstanding, the Court of Appeal was comfortable to conclude that even if the disciplinary inquiry would lead to dismissal and impact employment prospects and reputation, these factors did not warrant legal representation in what was a "straightforward" case of misconduct.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions