McKelvey v Iarnród Éireann [2019] IESC 79

Date01 January 2020
McKelvey v Iarnród Éireann [2019]IESC 79
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.
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’).

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