Frequently in the Employment Law Department of BDM Boylan Solicitors, we are asked if a person is entitled to legal representation if they are involved in a disciplinary or investigation procedure in the workplace.
Until recently, there was a certain degree of inconsistency in the cases coming before the Courts. The 2009 case of Burns v Governor of Castlerea Prison, the factors the Supreme Court held that might be relevant in considering whether legal representation is desirable in the interests of a fair hearing include:-
1. The seriousness of the charge and the potential penalty;
2. Whether or not a point of law is likely to arise;
3. The capacity of an individual to present his/her own case;
4. Whether any procedural difficulties are likely to arise;
5. The requirement for efficacy; and
6. The requirement for fairness between the parties.
In May 2017, the case of Lyons v Longford Westmeath Education and Training Board appeared to significantly widen the extent of fair procedures and natural justice that an employee is entitled to during an internal workplace investigation. The High Court held that the right to fair procedure and natural justice includes the right to legal representation during meetings and the right to cross examine witnesses at the preliminary investigation stage where the matter is sufficiently serious that it may warrant dismissal.
In two more recent decisions of the High Court, both given in June 2017 by McDermott J. in the case of E.G. v The Society of Actuaries in Ireland and also in the case of N.M. v Limerick and Clare Education and Training Board., it was held that the right to legal representation and cross examination were not applicable to the investigation process. The Court was satisfied that fair procedures do not apply in full, at the preliminary investigation stage, and that the full range of appropriate fair procedures apply only at the disciplinary stage, namely, the point at which a decision is made on the matter.
A year later in October 2018, the High Court halted a disciplinary proceeding against Mr. McElvey in the case of Iarnrod Eireann v McKelvey as it held that he was entitled to legal representation. The High Court arrived at its decision due to a number of factors, including:-
1. The impact on his reputation and future employment prospects;
2. The complexity of the case; and
3. The fact that issues of law would probably arise in the proceedings.
The decision was appealed by Iarnrod Eireann and the Court of Appeal overturned the High Court Ruling. It stated that, whilst Mr. McKelvey faced a disciplinary inquiry which could lead to his dismissal and which could have a significant impact on his future employment prospects and his reputation, nonetheless, the Court was of the view that he had not identified any factual or legal complexities that may arise that he would not be in a position to deal with adequately with the assistance of his trade union representative.
To conclude, legal representation in disciplinary or investigation procedures should be the exception based on the most recent caselaw. The principles of fairness and natural justice can be protected by allowing an employee to have a trade union representative or work colleague present at such hearings. There is no automatic right to be represented by a legal practitioner, however, the case of Burns v Governor of Castlerea Prison and the factors which the Court identified are helpful and may be considered in determining whether the circumstances are sufficient to warrant an employees entitlement to legal representation.
Shirley Fogarty
Partner
BDM Boylan Solicitors
Clarkes Bridge House, Hanover Street, Cork
021 431 3333