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The Supreme Court in a recent case of Barry McKelvey v Irish Rail has clarified the law in this complex area of whether to allow an employee to be legally represented.   There was conflicting decisions in the High Court which created significant uncertainty for both employees and employers. The McKelvy Decision clearly states that there is no automatic right to legal representation at internal Disciplinary Hearings.

Ordinarily, and wisely, the employers advise employees that they are entitled to bring a work colleague or a Union Representative to a grievance or Disciplinary Hearing (Note: Not just anybody e.g. a friend or someone unconnected with the employer and most definitely not a Lawyer). The WRC Code of Practice on grievance and disciplinary procedures recommends this as a good practice.   That being said its only a code and is not legally binding, but it would be unwise for an employer to ignore the code.

The Supreme Court has clearly stated that it is only in “exceptional cases” in order to ensure a fair Hearing that an employee might be entitled to have a Lawyer present at the Hearing.  In deciding whether to allow an employee bring a Lawyer the employer should have regard to the seriousness of the allegation (in the Irish Rail case he was suspected of theft which you would think was extremely serious but was found not to have a right to a Lawyer), the potential sanction (e.g. dismissal), whether there were complex legal points or procedural difficulties needing consideration and the need for reasonable speed in finalising the process.     I would be of the view that the employee’s personal circumstances should also be considered (e.g. illiterate or non-national, dyslexia).

Employers need to be careful and not automatically dismiss employee’s rights to legal representation.  It should be carefully considered and reasons given if necessary for a refusal.  A blanket refusal may not always be a good idea and strictly adhering to internal guidelines on entitlement to representation without due regard to the employee’s limited right to legal representation “in exceptional circumstances” may be counterproductive.   Sometimes it may make more sense to allow an employee have a Solicitor present for the Hearing and it may make any subsequent dismissal or sanction easier to defend in the event of an Appeal.

In the McKelvy case the Court noted that he had a Trade Union Representative assisting him and that he was trying to stop a process from proceeding that had only just started.  The Court couldn’t see anything in the internal process or the allegations against him that would put the process “beyond the competence of an experienced Trade Union Official”. This begs an obvious question if the employment is not unionised and perhaps work colleagues are of limited competence or education, who should an employee be entitled to bring with him/her.

In summary the case is useful and will be of assistance to Solicitors in advising clients, whether employers or employees, regarding grievance and Disciplinary Hearings.

We now know that the right to legal representation in Disciplinary Hearings only arises in exceptional circumstances.

Further the Court has given us some guidance as to the factors to be considered so as to come within the “exceptional circumstances”.

Finally it gives us an indication of the Court’s general attitude to the involvement in specialist areas already dealt with by Specialist Bodies e.g. WRC/Labour Court.    The Courts have always been reluctant to intervene.  If however disciplinary processes had “gone off the rails” then the Court would and should intervene where an unsustainable outcome would otherwise result.

In most workplace investigations/Disciplinary Hearings it is not necessary or desirable for Lawyers to be involved because of the consequential delay and increased costs that arise. Just because a case can be “better presented” by a Lawyer “falls a long way short of saying that the presence of a Lawyer is necessitated in order for the process to be fair”.

In the McKelvy case nothing had actually happened in the process which the Court considered was so serious as to prejudice the outcome and was incapable of being remedied by  the Tribunal at or before the end of the process.  The question was not whether McKelvy would be better represented by a Lawyer but rather whether he must be so represented to vindicate his constitutional rights to fair procedures.