knowledge | 9 November 2018 |

Important Clarification from Court of Appeal on Workplace Disciplinary Process

The Issue

The Court of Appeal has provided some welcome clarification on when the right to legal representation in internal disciplinary processes exists.

Up to last year, the rules surrounding the right to legal representation in disciplinary processes were relatively clear. The Code of Practice on Grievance and Disciplinary Procedures clearly excluded ‘any person or body unconnected with the enterprise’ from acting as an employee representative in a grievance or disciplinary process, and the Supreme Court judgment of Burns and Hartigan v Governor of Castlerea Prisonprovided that an employee could be entitled to legal representation in disciplinary proceedings in certain, ‘exceptional’, circumstances. The Supreme Court stated that the essential point in determining whether ‘exceptional circumstances’ existed was whether legal representation was needed in the circumstances of the case, but as a starting point, the following factors should be considered:

  • the seriousness of the charge and the proposed penalty;
  • whether any points of law are likely to arise;
  • the capacity of the particular person to present his or her own case;
  • procedural difficulty;
  • the need for reasonable speed in making the adjudication, that being an important consideration; and
  • the need for fairness between the different categories of people involved in the process.

However, this position were thrown into uncertainty in July 2017 when the High Court’s decision in Lyons v Longford Westmeath ETB was delivered (read our briefing on the Lyons decision here).

In its recent judgment of Irish Rail v Barry McKelvey, the Court of Appeal, has sought to clarify some of the uncertainty created by the Lyons decision.

The Facts

The case involved an appeal by Irish Rail against an order of the High Court restraining it from commencing a disciplinary hearing in relation to alleged “theft of fuel through misuse of company fuel cards” by Mr McKelvey. Irish Rail began an investigation in 2016 after concerns arose regarding the amount of fuel being purchased in Mr McKelvey’s division. When the decision to initiate a formal disciplinary process was reached and notified to Mr McKelvey in May 2017, Mr McKelvey requested that he be allowed to be represented by a solicitor and counsel at the hearing, having regard to the allegation of “theft”.

Irish Rail refused, stating that Mr McKelvey already had the right to be represented by a colleague or a registered trade union, in line with the Code of Practice on Grievance and Disciplinary Procedures. Following Irish Rail’s refusal to allow the request, Mr McKelvey successfully applied to the High Court for an injunction restraining Irish Rail from commencing the disciplinary proceedings until he was allowed to have his requested legal representation.

In granting the injunction, the High Court decided that the “charges levelled against Mr McKelvey could hardly have been more serious insofar as they put at risk not only his reputation but also his future employment prospects”. The Court found that Mr McKelvey’s right to fair procedures and natural and constitutional justice was engaged. The Court considered that “given the complexity of the case” Mr McKelvey had an entitlement to legal representation during the disciplinary process.

The Court of Appeal’s decision

Irish Rail appealed the High Court’s decision to the Court of Appeal and argued that the High Court had erred in law by concluding that the principles of natural justice automatically entitled Mr McKelvey to legal representation at the disciplinary hearing.

While both the High Court and the Court of Appeal agreed that Burns is the leading authority, the Court of Appeal disagreed with the High Court’s application of the Burns factors to be considered by an employer when deciding whether there is an entitlement to legal representation in disciplinary processes. 

The Court of Appeal, in granting Irish Rail’s appeal, implied that the High Court had focused on the first Burns factor (i.e. the seriousness of the charge and the proposed penalty) to the detriment of all others. Taking a broader consideration of the factors, the Court stated that,

“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].”

Take Away

The decision is a strong endorsement of Burns as the leading authority. Without completely disregarding Lyons, the Court of Appeal’s statement that it “significantly departed” from the Supreme Court authority will be comforting to employers who can will once again be able to confidently respond to requests for access to legal representation during internal disciplinary processes in the knowledge that the Burns test will apply.

While the case might provide some clarity and comfort to employers regarding legal representation, employers should be advised that the second limb of Lyons, i.e. the right to cross-examine witnesses in the disciplinary process, was not specifically addressed in McKelvey. Although the Court did caution that disciplinary procedures should not “ape” court proceedings, there is no explicit consideration of the extent of the right to cross-examine in disciplinary proceedings. In these circumstances, employers should continue to remain cautious in their approach to this question, as it is clear from previous High Court authority that the right to cross-examine can arise in some disciplinary processes. However, overall, the clarification provided by the Court of Appeal in relation to the right to legal representation will be welcomed by employers.

How can we help?

Our Employment, Pensions and Incentives Group advises many of Ireland’s major employers on workplace disputes, including the navigation of disciplinary processes. Please contact your usual contact in the McCann FitzGerald Employment, Pensions and Incentives Group, for further information.

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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