Lyons Decision Overturned

Background

The High Court decision in Lyons V Longford Westmeath Education and Training Board [2017/IEHC 272] arguably caused the most controversy in the world of employment law in 2017, not least because the High Court appeared to suggest that an employee is entitled to legal representation as part of fair procedures in all disciplinary processes (listen to our podcast) on this decision. This position was at odds with the Supreme Court judgement in Burns and another v The Governor of Castlerea prison [2009] 3.1.R. 682 which held that legal representation should only be appropriate in a disciplinary process in 'exceptional circumstances'.

Lyons Overturned

The Court of Appeal recently handed down its judgement in the case of Iarnrod Eireann/Irish Rail and Barry McKelvey which has now clarified the position in respect of legal representation in a disciplinary process by re-affirming the judgement in Burns.

This case arose from a disciplinary process where the employer alleged the employee, Mr. McKelvey, had committed theft by the misuse of fuel cards causing financial loss to the employer. Ms. Justice Irvine, on behalf of the Court of Appeal, concluded that legal representation should only be required in a disciplinary process in 'exceptional circumstances' i.e. in circumstances where an employee is able to demonstrate that they would not have a fair hearing in the course of a process because of some significant factual or legal complexity which the employee could not reasonably be expected to navigate safely without the assistance of legal representation.

Irvine J. further stated that it is "wholly undesirable to involve lawyers in workplace investigations" in the absence of 'exceptional circumstances' which she feels is consistent with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) as it is silent on legal representation.

The decision of the High Court in Lyons last year created some uncertainty around disciplinary processes which, amongst other things, led to a significant increase in requests from employees and their solicitors for legal representation during a disciplinary process. The clarity brought by the Court of Appeal judgement on this issue will, therefore, be very much welcomed by employers so it is worth considering further certain of the comments made by Irvine J. in her judgement.

1. The serious nature of the allegations made against the employee

   Irvine J. stated that the fact that the conduct...