The Supreme Court has affirmed the decision of the Court of Appeal in Iarnród Éireann / Irish Rail v Barry McKelvey that the right of an employee to be legally represented during an internal disciplinary process only arises in “exceptional circumstances.”
Mr. McKelvey was employed by the company since 2009 and appointed to the role of rail inspector in 2013. He was subjected to a disciplinary hearing following an investigation into an allegation of the misuse of a company fuel card, resulting in significant financial loss to his employer. Mr. McKelvey requested to have a legal representative present at the disciplinary meeting but his request was refused on the basis that the company policy did not provide for such representation and to do so would prolong the process.
Mr. McKelvey applied to the High Court for an injunction to prevent the disciplinary hearing from taking place without the presence of his legal representative. The Court ordered that the disciplinary hearing must be stopped until such time as Mr. McKelvey was permitted to have legal representation. The Court stated that in the circumstances, the refusal of legal representation would represent a denial of natural justice and render the hearing unfair. In granting the injunction, the Court relied on Burns and Hartigan v Governor of Castlerea Prison wherein the Supreme Court followed the English case of Regina v Home Secretary Ex Parte Tarrant which set out the following factors to be considered when deciding whether or not to allow for legal representation during an internal disciplinary process:
- The seriousness of the charge and the potential penalty;
- Whether any points of law are likely to arise;
- The capacity of the individual to present his or her own case;
- Procedural difficulties;
- The need for reasonable speed in making the adjudication; and
- The need for fairness between the parties.
Court of Appeal
The Court of Appeal held that by granting Mr. McKelvey an injunction, the High Court had erred in law. Although the Court agreed with following the principles laid out by the Supreme Court in Burns and Hartigan v Governor of Castlerea Prison, it held that those principles had been misapplied having regard to the particular facts of Mr. McKelvey’s case. The Court ruled that legal representation during an internal disciplinary process should only be afforded to an employee in exceptional circumstances and that no such exceptional circumstances existed in Mr. McKelvey’s case. The Court made the following comments:
“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 Supreme Court affirmed the decision of the Court of Appeal and held that the right of an employee to be legally represented during an internal disciplinary process only arises in “exceptional circumstances. The Court stressed that legal intervention is not appropriate while a disciplinary process is ongoing save where that process has gone “off the rails such that there is no reasonable prospect that any ultimate determination could be sustainable in law”. The Court stated that although a lawyer may have the ability to better present a case, it does not mean that the presence of a lawyer is necessary for the process to be fair. The Court noted that a serious allegation together with complex issues of law or complex facts could amount to “exceptional” circumstances and therefore, permit legal representation during the disciplinary process. Applying this to the present circumstances, the Court held that the facts of Mr. McKelvey’s case did not necessitate legal representation and that representation by a trade union member was sufficient.
The Supreme Court’s decision will be welcomed by employers as it confirms the position that an employee does not have an automatic right to legal representation during the internal disciplinary process. In order to assert such a right, “exceptional circumstances” must exist. Importantly, the Court refused injunctive relief as the circumstances in Mr. McKelvey’s case were not exceptional and therefore, did not necessitate legal representation at that stage. However, the Court noted that Mr. McKelvey would not be precluded from arguing he was entitled to legal representation at a later stage as the process developed. Accordingly, even though an employee may not be able to show that exceptional circumstances exist at one stage of the disciplinary process, they may be able to show that exceptional circumstances exist at a subsequent stage. In such instances, where an employee requests to be legally represented, an employer should carefully consider whether refusal of such representation would render the process unfair.