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Employment Law Procedures and Policies

Supreme Court Decides No Right to Legal Representation in Employment Disciplinary Hearing

legal representation workplace supreme court

The Supreme Court has confirmed the Court of Appeal decision regarding the absence of a right of an employee to legal representation in a workplace disciplinary investigation and hearing. This case involves an Iarnród Eireann employee, Barry McKelvey, who faces a disciplinary hearing over allegations of misappropriation of property in the workplace.

At the proposed disciplinary hearing arising from the investigation into allegations of theft the employee, pursuant to his contract of employment, is allowed representation by a work colleague or a trade union representative.

Mr McKelvey wished to be allowed legal representation and the Court of Appeal had decided there was no such right (read about that Court of Appeal case here). He appealed the decision to the Supreme Court who agreed with the Court of Appeal, albet for different reasons.

Supreme Court November 2019

The supreme Court refers to section 14 Unfair Dismissals Act 1977 which states

14.—(1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.

(2) Where there is an alteration in the procedure referred to in subsection (1) of this section, the employer concerned shall, within 28 days after the alteration takes effect, give to any employee concerned a notice in writing setting out the procedure as so altered.

(3) The reference in subsection (1) of this section to a procedure is a reference to a procedure that has been agreed upon by or on behalf of the employer concerned and by the employee concerned or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned, and the references in subsection (2) of this section to an alteration in the said procedure are references to an alteration that has been agreed upon by the employer concerned or a person representing him and by a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing the employee concerned.

(4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the grounds for the dismissal, but in determining for the purposes of this Act whether the dismissal was unfair there may be taken into account any other grounds which are substantial grounds and which would have justified the dismissal.

The Supreme Court went on to comment that

What should be involved, instead, is a search for the truth with the employee enabled to make a contribution to that process by stating whatever explanation is available to him or her. After all, while this is not a two-stage process where rights are afforded at a second stage, as in McNamee v Revenue Commissioners [2016] IESC 33 and the cases therein cited, once a complaint is validly made to the Workplace Relations Commission, the burden of justifying dismissal is on the employer through the calling of evidence, and the parties may there be legally represented.

The Supreme Court also observed that many contracts adopt the Industrial Relations Act 1990 code of practice on grievance and disciplinary procedures, as set out in SI 146 of 2000. These procedures do not allow legal representation and the place to start, and end, an examination as to what is allowed is the contract of employment.

The Court also pointed to the case of Mooney v An Post [1998] where the Court held

If the contract or the statute governing a person’s employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the employer to show that he has complied with this procedure

The Supreme Court notes that a difficulty may arise where the contract is silent as to what procedures are to be used but suggests a sensible approach would be to use the procedures set out by the Industrial Relations Act 1990. In this case the contractual entitlement was to be represented by a trade union official or a work colleague.

The Supreme Court went on to hold that the was not entitled to an injunction preventing the disciplinary hearing from going ahead in the absence of legal representation as it held,

The applicant is entitled by contract to have a fellow employee assist him at the disciplinary hearing, or to be represented by a trade union official. By contract, no other or outside individual may represent him.  Read the full Supreme Court decision in Barry McKelvey v Iarnród Éireann [2019] IESC 000 here

Categories
Employment Law Procedures and Policies

Court of Appeal Clarifies the Legal Right to Representation in Disciplinary Proceedings in the Workplace

irish rail v barry mckelvey

A decision delivered by the Court of Appeal at the end of October 2018 throws further light on this question of the right to legal representation in the workplace during disciplinary hearings.

This issue was thrown into some degree of confusion by what appeared to be inconsistent High Court decisions in the cases of Lyons v Longford Westmeath Education and Training Board, E.G. v The Society of Actuaries in Ireland, and N.M. v Limerick and Clare Education and Training Board. (You can read about these 3 High Court decisions here).

Iarnród Éireann / Irish Rail v Barry McKelvey

In this case Mr. McKelvey, an Irish rail inspector was subjected to a disciplinary procedure in his workplace into an allegation of misuse of company issued fuel cards and alleged theft of fuel which led to “significant financial loss” for the employer. Mr. McKelvey was denied the right to legal representation at the disciplinary hearing. Mr. McKelvey went to the High Court about this issue and sought to have the disciplinary hearing halted.

The High Court decided that he was denied fair procedure and constitutional/natural justice by reason of this refusal by Iarnród Éireann, even though he had the assistance of an experienced trade union official.

The High Court halted the disciplinary proceeding against Mr. McKelvey as it held that he was entitled to legal representation. The High Court arrived at this decision due to a number of factors including:

  • The impact on his reputation and future employment prospects
  • The complexity of the case
  • The fact that issues of law would probably arise in the proceeding

The High Court decision to halt the disciplinary proceeding was appealed to the Court of Appeal by Irish Rail.

Court of Appeal

The Court of Appeal agreed with the High Court in identifying the factors that a Court should look at when deciding this issue.

It disagreed with the High Court’s decision in the case of Mr. McKelvey, however, and held that the High Court had misapplied the factors to the circumstances of the case.

The Court of Appeal overturned the decision of the High Court and held that legal representation should only be granted in the most exceptional of circumstances. It also held that natural justice and fair procedures could be applied without the need for a lawyer and the help of an experienced trade union representative was sufficient stating, inter alia,

“While it is true to say that Mr McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view, the allegation of misconduct made against Mr McKelvey is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in position to deal with adequately with the assistance of [his trade union representative].”

The Court of Appeal also made the point that workplace disciplinary investigations and hearings should not be directly compared with investigations and hearings carried out by professional regulatory bodies such as the Medical Council or other professional regulatory bodies.

The Court of Appeal did not clarify definitively, however, the question of the right to cross examine witnesses in a disciplinary hearing as Irish Rail had allowed this as part of its procedure and the question did not have to be addressed in the Court of Appeal.

Nevertheless, it is advisable that this right is afforded to employees involved in a disciplinary hearing even though there appears remain a difference of opinion amongst lawyers on this point.

The Court of appeal also left the door open to reapply to Mr. McKelvey if a complex issue of law arose in the process.

You can read the full decision of this Court of Appeal case here: Iarnród Éireann/Irish Rail and Barry McKelvey.

Supreme Court Appeal

This case was appealed to the Supreme Court and the Supreme Court arrived at the same decision as the Court of Appeal, by way of a slightly different route, and decided that there was no entitlement to be legally represented at a disciplinary hearing about alleged misappropriation of property.

In summary the Supreme Court held

The applicant is entitled by contract to have a fellow employee assist him at the disciplinary hearing, or to be represented by a trade union official. By contract, no other or outside individual may represent him.

Read the full Supreme Court decision here (11th November 2019).