A common query received by employment lawyers from employers conducting disciplinary processes is whether employees are entitled to be accompanied by a lawyer. The standard answer, often unhelpfully, has tended to be ‘it depends’.

However, until recently there was good reason for this fence-sitting. The case law on whether the right to fair procedures extended to allowing employees to be accompanied by a lawyer in an internal disciplinary process was somewhat unsettled.

The Court of Appeal has recently brought much-needed clarity to this question, and lawyers can now advise with confidence that employees are only entitled to be accompanied by lawyers in disciplinary processes in “exceptional circumstances”.

Code of practice As a starting point, the statutory code of practice on grievance and disciplinary procedures states that employees can be accompanied at disciplinary hearings by a fellow colleague or trade union representative – but not any other person or body.

As most disciplinary policies have been drafted to reflect the requirements of the code, the traditional approach for employers has been to (almost always) refuse an employee’s request to be accompanied by a lawyer in an internal disciplinary process. However, case law developments in recent years appeared to open the door to lawyers accompanying employees in internal processes.

One of those developments concerns situations where the outcome of those processes could result in dismissal or a negative impact on an employee’s reputation or future employment prospects.

Reputational harm In the recent case of Iarnród Éireann/Irish Rail v McKelvey [2018] IECA 346, the Court of Appeal found that an Irish Rail inspector had not been deprived of fair procedures in circumstances where he was refused permission to be accompanied by a lawyer during a disciplinary hearing.

The inspector had argued he required legal representation as he was facing potential dismissal and the outcome of the process could impact his reputation and future employment prospects.

Significantly, the court stated that legal representation at disciplinary hearings need only be permitted in “exceptional circumstances”. The Court of Appeal did not describe the type of fact patterns that would meet the high threshold of constituting exceptional circumstances.

However, it is clear from the decision that the potential for an employee to be dismissed or suffer reputational harm as a result of the disciplinary hearing will not necessarily trigger an entitlement to legal representation.

When considering a request for legal representation, the court directed employers to take account of various factors. These include the seriousness of the charge, the potential penalty, whether points of law were likely to arise during the hearing, and whether the employee had the capacity to represent themselves during the process.

The answers to these questions will inform the assessment as to whether legal representation is necessary to order to ensure the employee receives a fair hearing. What does this mean in practice? It goes without saying that employers need to stick closely to their own disciplinary policy when conducting disciplinary processes.

In line with the code, an employer should ensure its disciplinary policy expressly provides that employees may only be accompanied by a fellow colleague or trade union official (if applicable) during a disciplinary hearing.

Bar set The Court of Appeal has set a high bar for employees who wish to be represented by a lawyer during a disciplinary process. It is no longer sufficient for the employee to simply advance good reasons as to why they should be legally represented; they must be able to point to “exceptional” circumstances.

Though this recent judgment unquestionably strengthens the position of employers who do not wish to permit their employees to be legally represented during disciplinary hearings, employers should still tread carefully when dealing with such requests from employees.

While the rule of thumb – allowing lawyers only in “exceptional circumstances” – has helpfully been confirmed, the key issue going forward will be stress-testing the specific facts of each case. This will be a vital step in determining whether there is a need to make an exception to the general rule and permit an employee to be legally represented at a disciplinary hearing.

This article first appeared in the Sunday Business Post on Sunday 25 November 2018.