Legal Representation In Internal Disciplinary Processes

The recent Court of Appeal judgment in Iarnrod Eireann / Irish Rail v. McKelvey [2018] IECA 346 ("McKelvey") deals with question of the right of employees to have external representation in internal disciplinary procedures. For previous commentary on this issue click here.

Disciplinary procedures must be fair

Disciplinary procedures must be fair and so must comply with the rules of natural justice. An employee is entitled to know exactly what allegation he has to defend and what process will be followed in the course of the proceedings. The employee should know the nature of the sanction which may potentially be imposed on him and he must have the right to be heard and to make representations on his own behalf as well as to call his own witnesses and cross-examine witnesses called against him. Typically, procedures permit employees to be "accompanied by" a fellow employee of their choice or possibly by a trade union representative. Issues may arise if a policy permits the employee to be "represented by" such a person. There can be issues as to whether the fellow employee or union representative is merely there as a witness to the process or whether they may actively participate. The seriousness of these issues can occasionally increase dramatically where an employee is facing an allegation of very serious misconduct or dishonesty such that their job is in jeopardy and their reputation may be on the line. Often in these cases the employee will seek to be legally represented. It is the case that the employer could, at its discretion, accede to a request for legal representation. The real issue arises where a request is made and is declined by the employer. Generally and for obvious reasons, employers will not want to escalate matters by allowing lawyers into the internal process on the basis that if there is to be an appeal to an external forum such as the Workplace Relations Commission or a court then that may be the appropriate time for legal representation.

Background to McKelvey

Briefly, Mr. McKelvey stood accused of theft through misusing Irish Rail's fuel card system and faced disciplinary action up to and including dismissal. Due to the serious nature of the allegation he sought to be legally represented at the disciplinary hearing but Irish Rail refused on the grounds that the policy entitled him to be represented by trade union official. Mr. McKelvey went to the High Court which, applying principles laid down in the Supreme Court...