McKelvey v Iarnród Éireann [2019] IESC 79

• Date: 01 January 2020

153

McKelvey v Iarnród Éireann [2019]IESC 79

SIOBHÁN LAFFERTY*

Introduction

Late last year, on 11 November 2019, the Supreme Court ruled on the issue of

the entitlement to legal representation at internal disciplinary hearings in the

case of McKelvey v Iarnród Éireann.1 e Supreme Court found that the right to

legal representation in internal disciplinary proceedings will only be required in

‘exceptional circumstances’ and therefore dismissed the employee’s appeal. is case

note will briey consider the High Court and Court of Appeal judgments leading

to the Supreme Court decision. It will then summarise the majority judgment

delivered by Clarke CJ and the minority judgment (although not dissenting) by

Charleton J. Finally the case note will analyse the majority and minority decisions of

the Supreme Court, considering some of the questions which remain following the

case. is case note will conclude that although this case provides clarity in respect

of the fact that a right to legal representation exists in exceptional circumstances,

in practical terms there are now far fewer eventualities in which an employee can

successfully argue that they are constitutionally entitled to legal representation

during internal disputes with their employer.

Background

Mr McKelvey was employed as a Per Way Inspector of Iarnród Éireann (the

‘Company’) since 2013. As part of that role, he was provided with fuel cards to

facilitate the refuelling of company vehicles and machinery. In July 2016, issues

arose in respect of the levels of expenditure on the fuel cards in the division in

which Mr McKelvey worked. Preliminary investigations took place and Mr

McKelvey was interviewed numerous times between August 2016 and February

2017. During the investigation meetings, Mr McKelvey was accompanied by a

trade union representative. Ultimately, Mr McKelvey was suspended as a result of

the investigation. ereaer the Company commenced disciplinary proceedings

against him in respect of the charge of the of fuel through the misuse of a company

fuel card.

Mr McKelvey requested that he have legal representation in the form of a solicitor

and counsel at the disciplinary hearings on the basis of the alleged complexity of

* (LL.B.)(Euro)(Hons.), Dip LP, Dip (EmpLaw), LL.M. Irish and Scottish qualied solicitor.

1 McKelvey v Iarnród Éireann [2019] IESC 79 (‘McKelvey’).