The Supreme Court, in McKelvey v Irish Rail , have issued a welcome clarification of an employee’s entitlement to ‘representation’ during internal disciplinary procedures; ruling that same is only permitted in ‘exceptional’ circumstances. Unless this standard is satisfied, the refusal to permit legal representations during such procedures does not render the process unfair and/or infringe on the employee’s right to fair procedures and natural justice as guaranteed under SI No 146/2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.
As provided for under Code of Practice, in accordance with the right to representation during disciplinary procedures, a representative is defined as ‘a colleague of the employee’s choice and SI 146/2000 a registered trade union but not any other person or body unconnected with the enterprise’. However, in recent years the definition has seemingly expanded to include legal representation to certain circumstances. At odds of the foregoing case was the decision in Lyons v Longford Westmeath Education and Training Board  IEHC 272. Here, an employee found themselves subject to a fact-finding investigation pertaining to a number of bullying allegations against an employee, a deputy school principal. The outcome of the investigation made a number of findings against the employee. The employer’s Bullying Prevention Policy prevented employees from availing of legal representation during the disciplinary process and didn’t afford them a right to cross-examine their accusers. It was held by Justice Eager ‘where investigative processes can lead to dismissal, cross-examination is a vital safeguard to ensure fair procedure’ and that the employer here ‘failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing … it is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence’. The court found that the investigation was flawed and in contravention of the employee’s constitutional right to fair procedures. This resulted in the decision from the disciplinary hearing being set aside.
At the time Justice Eager’s decision represented a strong deviation from the long-held standard set out in S.I. 146/2000. This position was restated in the case of EG v The Society of Actuaries in Ireland  IEHC 392. Here, the court held that only when there is potential for serious adverse findings against an employee then the full array of fair procedures and natural justice would be necessary, thus giving rise to the entitlement to legal representation and to cross examine witnesses. Here, the court made a distinction between preliminary investigations and formal disciplinary procedure, relying on the Supreme Court decision in O’Sullivan v Law Society of Ireland  IEHC 632 where Justice McDermott held:
‘In the courts view it was not necessary for the first named respondent to afford the applicant the full panoply of natural justice rights in the course of any investigation into his conduct… they were of course obliged, to treat him fairly but they were entitled to adopt less formal and more abridged procedures…the full panoply of natural justice rights does not inexorably apply at every phase of an investigative process. An appropriate standard of fair procedures must be applied at all stages of a tiered process. There may be situations in which a stronger degree of procedural protection may be required having regard to the decision to be taken at an investigative stage or its potential consequences.’
However, it seems the Supreme Courts determination in McKelvey v Irish Rail has now further limited the possibility of an employee’s right to legal representation, in what seems to be an attempt to prevent a workplace investigation from turning into a courtroom, reverting to the previous standard held in Burns & Anor v The Governor of Castlerea Prison  IESC 33. In Burns, the Supreme Court confirmed that generally there is no legal right to representation at internal disciplinary procedures hearings. It was held, akin to the decision in McKelvey, that in exceptional circumstances that a right to legal representation may exist, but this would only ‘be required by the principles of constitutional justice’. In other words, the right to legal representation should be the exception and not the rule. Geoghegan J stated that it was ‘wholly undesirable to involve lawyers in workplace investigations unless it be established that there is something exceptional about the matters scrutinised such that it would be reasonable to conclude that the proposed hearing could not be a fair one absent legal representation’.
Justice Geoghegan in Burns focused on the six criteria from R v Secretary of State for the Home Department, ex-parte Taranto  1 QB 26 as relevant, when determining whether legal representation may be necessary in the interests of fair procedures. These criteria were as follows:
- The seriousness of the charge and of the potential penalty;
- Whether any points of law are likely to arise;
- The capacity of a particular employee to present his own case;
- Procedural difficulties;
- The need for reasonable speed in making the adjudication;
- The need for fairness as between the parties.
In McKelvey, the appellant was employed as an Irish Rail Inspector. He became the subject of an investigation surrounding the alleged misuse of his company fuel card allowance. The Chief Justice Clarke of the Supreme Court reaffirmed the Court of Appeal decision, agreeing with the finding in Burns, that save in exceptional circumstances there was no automatic right to legal representation at disciplinary stage. Clarke CJ stated that the overarching principle is ‘those cases where legal representation is necessary to achieve a fair hearing that any implied entitlement to such representation can be said to exist’. In other words, the main question becomes, whether in the absence of legal representation, would the employee be left without adequate representation?
In determining what circumstances qualify as such, the court considered the fact that the charges may constitute a criminal offence to be ‘of some marginal relevance but…of limited weight…and that an internal disciplinary process such as this is not a criminal trial’. The concept of exceptional standard does not necessarily mean a scenario that would result in an employee’s dismissal. Rather the court stated that if there was something in the evidence before it to suggest that the matter to be investigated was ‘particularly difficult issues of law or extremely complex facts’, the cumulative effect may be, in ‘an exceptional case’, that legal representation is required.
Clarke CJ also summarised the courts position when it comes to intervening during a workplace disciplinary process [particularly that of injunctive relief], that courts should be slow to exercise their ability to interfere save in circumstances where the entire process has ‘gone off the rails’ to such an extent that there was no reasonable prospect that the final decision could be justified in law. Meaning, speculation alone regarding potential contentious issues does not in itself condone the presence of legal representation and that to delay a process on the basis of such, could only be to the detriment of the employer as it affects the ‘orderly conduct of employer/employee relations’.
As part of the judgement, Charleton J reiterated that rights often associated with criminal trials, are not essentially universal in their application to such workplace enquires and that ‘the place to start, and often to end, is the contract of employment’. Further guidance on this matter can be found with Justice Irvine’s Court of Appeal decision in McKelvey whereby she stated ‘of course, it is possible that some complex issue might arise in the course of the disciplinary inquiry…if it did, that would be the time for Mr. McKelvey to ask that the inquiry be postponed to enable him to obtain legal representation’.
The Court of Appeal 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:
‘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 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. 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 a position to deal with adequately with the assistance of his trade union representative’.
The Supreme Court’s decision represents a more conservative approach to employee’s rights in workplace disciplinary matters, whilst also providing employers some comfort following the confusion and uncertainty caused by Lyons; reaffirming that there is no automatic right to legal representation and that employers retain significant discretion when determining same.
Going forward employers should be wary of the circumstances when subjecting an employee to disciplinary action. We have become increasingly aware that more and more investigations are being rendered flawed by virtue of the fact they go beyond the fact-gathering process and making determinations therein. On the basis of such, an employee could try to enforce their right to legal representation which in itself could frustrate and complicate the process in its entirety. To avoid procedural unfairness, employers should always employ the following basic principles:
- An employee should be informed of the allegations against them, furnished with all evidence being relied upon at the hearing, be notified of the severity of the situation, particularly in instances of gross misconduct and that same could lead to their dismissal if upheld;
- In addition, the employee will need to be informed of their right to representation, either a work colleague or Trade Union Official. If the allegations are serious and may result in dismissal does not in itself justify the presence of a legal practitioner; only instances where complex legal issues arise and requires a lawyer to manage same;
- During the investigation, the employee should be afforded a reasonable opportunity to address the allegations and evidence, particularly any witness statements therein;
- The investigator issues a detailed report, merely stating the facts gathered throughout the process, refraining from making a determination and/or recommendation;
- Another member of management (distinct to those involved in the investigation), on foot of the investigation report, takes a decision of whether or not to proceed to disciplinary action;
- The first two steps should be repeated in their entirety. After which a full decision should be issued within a reasonable time period, setting out the basis of their decision, and the sections of the Contract of Employment and/or Employee Handbook being relied upon. In conjunction with the action taken, an employee should be offered the right to appeal any decision within a specified period.