The High Court decision in Lyons V Longford Westmeath Education and Training Board [2017/IEHC 272] arguably caused the most controversy in the world of employment law in 2017, not least because the High Court appeared to suggest that an employee is entitled to legal representation as part of fair procedures in all disciplinary processes (listen to our podcast) on this decision.
This position was at odds with the Supreme Court judgment in Burns and another v The Governor of Castlerea prison  3.1.R. 682 which held that legal representation should only be appropriate in a disciplinary process in 'exceptional circumstances'.
The Court of Appeal recently handed down its judgment in the case of Iarnrod Eireann / Irish Rail and Barry McKelvey which has now clarified the position in respect of legal representation in a disciplinary process by re-affirming the judgment in Burns.
This case arose from a disciplinary process where the employer alleged the employee, Mr McKelvey, had committed theft by the misuse of fuel cards causing financial loss to the employer. Ms Justice Irvine, on behalf of the Court of Appeal, concluded that legal representation should only be required in a disciplinary process in 'exceptional circumstances' ie in circumstances where an employee is able to demonstrate that they would not have a fair hearing in the course of a process because of some significant factual or legal complexity which the employee could not reasonably be expected to navigate safely without the assistance of legal representation.
Irvine J. further stated that it is “wholly undesirable to involve lawyers in workplace investigations” in the absence of ‘exceptional circumstances’ which she feels is consistent with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) as it is silent on legal representation.
The decision of the High Court in Lyons last year created some uncertainty around disciplinary processes which, amongst other things, led to a significant increase in requests from employees and their solicitors for legal representation during a disciplinary process. The clarity brought by the Court of Appeal judgment on this issue will, therefore, be very much welcomed by employers so it is worth considering further certain of the comments made by Irvine J. in her judgment.
1. The serious nature of the allegations made against the employee
Irvine J. stated that the fact that the conduct under investigation had the potential to result in criminal prosecution at a later date was not unusual in the context of an inquiry into incidents of theft in the workplace. She also added that any finding against Mr McKelvey in the disciplinary inquiry would not be admissible as evidence against him in any future criminal proceedings. In other words, Irvine J. was of the view that the criminal nature of the allegations alone did not warrant the involvement of legal representation.
2. Potential sanction and adverse effect on the employee
Irvine J. made it clear that the sanction of dismissal is not an exceptional feature of disciplinary hearings in the workplace. She also stated that, while an adverse finding against Mr McKelvey may impact on his future employment prospects and reputation, in this regard, he would be no different to many employees facing allegations of misconduct in the workplace – this did not mean, however, that Mr McKelvey was at any greater risk of receiving an unfair hearing without legal representation than if he was at risk of a lesser sanction.
These comments are directly relevant to a point raised by the High Court in Lyons which appeared to suggest that the right to legal representation must exist whenever an employee could face dismissal in a disciplinary process. Irvine J. made it clear though that the determining factor is not the gravity of the potential sanction or sanction but whether the employee in question would receive a fair hearing without legal representation. If the answer to that is in the affirmative then, regardless of the potential sanction, legal representation does not need to be made available.
3. The complexity of the case
Irvine J. said that the allegation of misconduct made against Mr McKelvey was a straightforward one and that there was nothing in the evidence to suggest that the hearing would be unfair unless Mr McKelvey was legally represented. She stated that if a complex legal issue arose in the course of the disciplinary inquiry then it would be open to Mr McKelvey at that point in time to renew his application for legal representation.
Irvine J. referred to the fact that Mr McKelvey had the assistance of an experienced trade union representative. She, therefore, noted that the question was whether Mr McKelvey, with the assistance of a trade union representative, would not obtain a fair hearing because of the representative’s lack of legal training. Irvine J. held that there was no evidence to suggest that this was not the case and referred to evidence as to the experience and capability of his trade union representative who was defending two other employees facing very similar charges.
4. Right to appeal
Irvine J. also took into account that Mr McKelvey enjoyed the right to a full appeal from any findings which may be made against him during the disciplinary process and that he could also renew his request for legal representation at the appeal stage if a particular issue of complexity warranted this.
After over a year of uncertainty since Lyons, the McKelvey judgment has finally clarified the position for employers when faced with an employee’s request for legal representation during a disciplinary process. Employers can now refuse such a request unless the sort of ‘exceptional circumstances’ described above exist which, in practice, should significantly limit the involvement of lawyers in disciplinary processes. Employers should, however, ensure that employees are aware of their entitlement to be represented at a disciplinary hearing.
Co-authored by Russell Rochford, Partner and Yvonne Bouton, Associate in the Employment Law Practice.