Refusal To Give Employee Right To Be Represented By Trade Union Official At Disciplinary Hearing Could Be Procedurally Unfair

Author:Mr Kevin Langford, John Casey and Niamh Fennelly
Profession:Arthur Cox

In last week's client briefing (available here), we considered the exceptional nature of the right to legal representation in disciplinary proceedings as set down by the Supreme Court in McKelvey v Irish Rail.

This week, we consider the more general question of the extent of an employee's right to representation when facing possible dismissal and/or other adverse impact on their reputation, an issue most employers will have grappled with. Autumn 2019 may have revealed an emerging trend in the Workplace Relations Commission's approach to the question: when does an employee have the right to be represented by a trade union official?

The Code of Practice

The reason for the debate on this question is a near 20 year old ambiguity in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (the "Code of Practice"). The Code of Practice provides for an employee's right to be represented by an employee representative, which "includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise."

The Code of Practice is therefore unclear as to whether:

an employee has the right to elect between a trade union official or a work colleague as their representative; or an employer can comply with the Code of Practice by specifying that an employee may only have a work colleague attend, given that a work colleague falls within the definition of an employee representative. In our experience, a significant number of employers have adopted the latter interpretation, meaning that many employers' disciplinary procedures provide that an employee's only option, if they wish to be represented, is to be represented by a work colleague.

Recent WRC Determinations

It does not appear as if any legislation is planned, to resolve the ambiguity in the Code.

However, two recent decisions of the Workplace Relations Commission's Adjudication Service may signal an emerging trend that an employer who fails to allow an employee to bring a trade union official as his/her representative in disciplinary proceedings will be unable to defend unfair dismissals claims on procedural grounds.

In the first case, A Chef v A Contract Catering Co, the employer's disciplinary procedure provided that employees who were trade union members could be represented by a trade union official but employees who were not trade union members could not...

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