Over the last number of years, and particularly in the last 18 months, employment lawyers have faced the above question on a daily basis from their clients. The High Court decision in the Lyons case (Lyons v Longford Westmeath ETB  29 ELR 35) caused huge concern (and extensive robust conversations) amongst practitioners, as it placed our advice and our corrective action/disciplinary policies in the unknown.
Stability appears to have returned again with the welcome decision for employers in the case of Iarnród Éireann/Irish Rail v. Barry McKelvey (the employee).
On the 31st October 2018, Ms. Justice Mary Irvine delivered the Court of Appeal decision in the case of Iarnród Éireann/Irish Rail v. Barry McKelvey.
The Court of Appeal overturned the decision of the High Court which had granted the employee an injunction preventing Irish Rail from commencing a disciplinary hearing, unless he was granted his request for legal representation.
It is worthwhile to set out the background to the case, and it is indicative of the standard required to determine the question of a right to legal representation exists (further details of which are set out below).
The employee worked for Irish Rail since 1999 and was appointed to the role of inspector in May 2013. As part of this role, the employee had the use of fuel cards in order to re-fuel company vehicles. The employer became alarmed by the amount of fuel being purchased on cards in the employee's division and carried out a preliminary investigation, during which the employee was interviewed a number of times. Irish Rail decided to commence its formal disciplinary process and when the employee was informed of same, he requested that he be allowed to be represented by his solicitor and counsel at the disciplinary hearing. This request was refused, as Irish Rail's internal policies did not provide for legal representation. At the hearing, it relied on SI 146/200 Industrial Relations Act 1990 (Code of Practice of Grievance and Disciplinary Procedures) in support of its position that legal representation is not an entitlement at a disciplinary hearing. Following the employee's application to the High Court, Irish Rail was prevented from starting its disciplinary process at outlined above.
Right to Legal Representation
The key issue for consideration in the Court of Appeal was whether or not legal representation was required in order for the employee to receive a fair hearing in...