In general, an employee does not have the right to be represented by a solicitor in an internal disciplinary investigation or hearing. The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) provides that employees should be given the opportunity to avail of the right to be represented during a disciplinary procedure. However, for the purposes of this Code, an employee representative includes a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise.

However, as per the decision of the Supreme Court in the case of Alan Burns and Another v The Governor of Castlerea Prison and Another [2005] IEHC 76, an employee will have the right to legal representation in a disciplinary hearing where exceptional circumstances exist. In this case, two prison officers claimed overtime arising out of escorting a prisoner for a medical examination outside the prison. The officers returned to the prison at 6.25 p.m. However, it was claimed by the prison authorities that they should have returned by 3.30 p.m. The officers were requested to attend disciplinary hearings on the matter. Both officers attended the hearing but refused to participate without legal representation. The hearing proceeded without their input and the Governor imposed a disciplinary sanction. The officers challenged the disciplinary sanction and successfully argued in the High Court that they were entitled to legal representation due to the seriousness of the charges against them. The prison successfully appealed to the Supreme Court.

The Supreme Court held that, in general, there is no right to legal representation in disciplinary hearings, however, legal representation may be required in “exceptional circumstances” in order to ensure fairness. In considering whether “exceptional circumstances” exist, the Supreme Court set out the following 6 factors which should be considered:

  1. The seriousness of the charge and of the potential penalty;
  2. Whether any points of law are likely to arise;
  3. The capacity of a particular disciplinee to present his own case;
  4. Procedural difficulties;
  5. The need for reasonable speed in making the adjudication, that being an important consideration; and
  6. The need for fairness as between the parties.

As a matter of best practice, every employer should have a disciplinary policy which expressly excludes the right to legal representation at disciplinary investigations or hearings. If an employee requests legal representation, consideration should be given as to whether any “exceptional circumstances” exist, either at the investigation or disciplinary stage. Exceptional circumstances are less likely to arise during the investigation stage and it would be very unusual for an organisation to allow legal representation at that stage.

In certain cases, there may be merit in acceding to the request to allow legal representation, particularly at the disciplinary stage, as it may be more difficult for an employee to contend, after the event, that a dismissal was unfair on the basis that fair procedures were not complied with. Finally, if legal representation is permitted, it should be stressed that it is on once off and exceptional grounds to minimise the risk of creating a precedent for other employees.