Over the last number of years, and particularly in the last 18 months, employment lawyers have faced the above question on a daily basis from their clients. The High Court decision in the Lyons case (Lyons v Longford Westmeath ETB  29 ELR 35) caused huge concern (and extensive robust conversations) amongst practitioners, as it placed our advice and our corrective action/disciplinary policies in the unknown.
Stability appears to have returned again with the welcome decision for employers in the case of Iarnród Éireann/Irish Rail v. Barry McKelvey (“the employee”).
On the 31st October 2018, Ms. Justice Mary Irvine delivered the Court of Appeal decision in the case of Iarnród Éireann/Irish Rail v. Barry McKelvey.
The Court of Appeal overturned the decision of the High Court which had granted the employee an injunction preventing Irish Rail from commencing a disciplinary hearing, unless he was granted his request for legal representation.
It is worthwhile to set out the background to the case, and it is indicative of the standard required to determine the question of a right to legal representation exists (further details of which are set out below).
The employee worked for Irish Rail since 1999 and was appointed to the role of inspector in May 2013. As part of this role, the employee had the use of fuel cards in order to re-fuel company vehicles. The employer became alarmed by the amount of fuel being purchased on cards in the employee’s division and carried out a preliminary investigation, during which the employee was interviewed a number of times. Irish Rail decided to commence its formal disciplinary process and when the employee was informed of same, he requested that he be allowed to be represented by his solicitor and counsel at the disciplinary hearing. This request was refused, as Irish Rail’s internal policies did not provide for legal representation. At the hearing, it relied on SI 146/200 Industrial Relations Act 1990 (Code of Practice of Grievance and Disciplinary Procedures) in support of its position that legal representation is not an entitlement at a disciplinary hearing. Following the employee’s application to the High Court, Irish Rail was prevented from starting its disciplinary process at outlined above.
Right to Legal Representation
The key issue for consideration in the Court of Appeal was whether or not legal representation was required in order for the employee to receive a fair hearing in accordance with natural justice. The Court considered the previous decision of the Supreme Court in the case of Burns and Hartigan v Governor of Castlerea Prison . In that decision the Court held that the following factors should be considered by an employer in determining whether an individual’s right to legal representation arises:
- the seriousness of the charge and of the potential penalty;
- whether any points of law are likely to arise;
- the capacity of a particular individual 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 as between individuals in different roles in the process.
The High Court in the Irish Rail decision concluded that given the complexity of the case, the employee should be allowed to retain legal representation should he wish to do so. The High Court Judge made specific reference to the Burns decision and the fact that Court was satisfied that it could not be said that the applicants could not receive a fair hearing without legal representation. The Court of Appeal found that a disciplinary hearing would not be considered unfair, or in breach of natural justice, simply because the person against whom the misconduct was alleged did not have legal representation. It also noted that the allegation of misconduct in this case was a “straightforward one”, and one regularly faced by many employees in similar circumstances.
Court of Appeal findings
In overturning the High Court’s decision, the Court of Appeal held that the Burns test outlined above was the correct test (and implicitly that the Lyons decision is not correct) to use in consideration of a request for legal representation during a disciplinary hearing.
Key takeaways for Employers
The decision is significant in that it provides clear direction from the Judiciary as to the appropriate test to use when employers are faced with requests for legal representation during a formal disciplinary process.
In short, legal representation in a disciplinary hearing should be limited to exceptional cases.
Employers will still need to consider a request for legal representation in every instance, but it provides the employer with the choice of whether or not to grant the request.
By way of comment, unfortunately the decision did not address the issue of cross-examination in disciplinary hearings, being another element arising from the Lyons case. It remains to be seen as to the extent of either party’s right to cross-examine during a disciplinary hearing in light of the above decision. In this case, Irish Rail had agreed to the employee’s right to cross-examine, and so it was not in dispute before the Court.
On balance however, in circumstances where legal representation in disciplinary hearings is limited as outlined above, it is not a wild leap to imagine that the right to cross-examination will be similarly curtailed to exceptional circumstances, as had been the case in all decisions prior to the Lyons decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.