Supreme Court Finds Right To Legal Representation In Disciplinary Processes Is Exception Rather Than Rule


When will a disciplinary process be unfair unless an employee is allowed legal representation? This was the single question of general importance which the Supreme Court was charged with answering in McKelvey v Irish Rail.

The Supreme Court's determination of that question did four things.

It gave a short answer to the question: an employee will only have a right to legal representation in disciplinary processes in exceptional circumstances. It set out the general principles and framework for analysing whether or not there is a right to legal representation in any particular case. It found that Mr McKelvey did not have a right to legal representation in this specific case and accordingly upheld last year's Court of Appeal decision (see our client briefing on that decision here). It clarified the circumstances in which the Courts will get involved in ongoing workplace disciplinary proceedings. Background

The facts were not in dispute. Irish Rail allowed Mr McKelvey, its employee, to be represented in the disciplinary process against him by either a colleague or a trade union representative. Mr McKelvey asked to be allowed to be legally represented and Irish Rail refused.

Mr McKelvey claimed his trade union representative was subject to a conflict of interest because a number of Mr McKelvey's colleagues, who were the subject of similar allegations, were also represented by the same trade union. Mr McKelvey argued those colleagues had different interests to him and one trade union official could not fairly represent all of those different interests.

The High Court granted Mr McKelvey an injunction preventing Irish Rail from running the disciplinary process against him. The Court of Appeal overturned this, following an appeal by Irish Rail, an outcome which Mr McKelvey in turn appealed to the Supreme Court.

What is the role of the Courts in ongoing workplace disciplinary proceedings?

The Supreme Court began by emphasising that the Courts should not get involved in ongoing workplace disciplinary proceedings:

"unless it is clear at the stage when an injunction is sought that something has occurred which is sufficiently serious and incapable of being cured so that there was no realistic prospect that a legally sustainable conclusion could be reached at the end of the process."

The Supreme Court noted this principle of reluctance to intervene in such matters had been emphasised by it in Rowland v An Post in 2017. The exception to this would...

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