The Right To Legal Representation In A Disciplinary Inquiry – The Exception, Not The Rule?

Author:Ms Louise O'Byrne and Sally Doyle
Profession:Arthur Cox

The decision of Eagar J in Lyons v Longford Westmeath Education and Training Board was seen as a dramatic development in some quarters by confirming the right of an employee to legal representation when facing possible dismissal or an adverse impact on his/her reputation.

Cases since Lyons have clarified and limited the scope of the decision by confirming that the right arises at a disciplinary hearing before a final decision on sanction is made. However, a recent decision of the Court of Appeal represents a stark departure from this position.

The Court of Appeal in McKelvey opted to apply the principles set out in Burns v Governor of Castlerea Prison (namely that an entitlement to legal representation exists only in exceptional circumstances) to frame its decision on an employee's right to legal representation in a disciplinary inquiry.

The right to legal representation also arose in a recent Labour Court decision. The Labour Court in Burns v Component Distributors (CD Ireland) concluded that no right to legal representation arises in a redundancy process.

Iarnroid Eireann / Irish Rail v Barry McKelvey

The Court of Appeal ruled that Irish Rail is not required to allow an employee have legal representation before it embarks on a disciplinary inquiry into an allegation of misconduct arising from alleged "theft of fuel" through misuse of a company fuel card. The Court of Appeal in its judgment found the High Court erred in law by granting injunctions restraining the inquiry, until the employee's claimed entitlement to legal representation was agreed to.

The Court held that, on the facts as they stood in May 2017 when Irish Rail initiated the inquiry and refused Mr McKelvey's application for legal aid, he did not require lawyers. There were no special or exceptional circumstances which warranted the High Court finding Mr McKelvey could not get a fair hearing in accordance with natural justice unless he was represented by solicitor and counsel. While the High Court was entitled to have regard to the serious nature of the charge against Mr McKelvey, the potential penalty and potential impact on his reputation, these were matters "far from exceptional" in the context of workplace investigations and not dispositive of his entitlement to lawyers. The Court stated:

"Whilst an employee facing a disciplinary inquiry in respect of alleged misconduct may be at risk of inter alia dismissal from their employment and significant damage to their good name...

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