The Supreme Court recently ruled in McKelvey v Iarnród Éireann/Irish Rail that legal representation during disciplinary proceedings will only be required in exceptional circumstances.
Mr McKelvey was an employee of Iarnród Éireann and was the subject of an investigation in 2016/2017 relating to an allegation of misusing a company card provided to him to purchase fuel for vehicles and machinery. Mr McKelvey was suspended on basic pay until further notice upon the conclusion of the investigation in March 2017. Two other employees were also suspended.
Iarnród Éireann commenced disciplinary proceedings against Mr McKelvey and the two employees. Mr McKelvey subsequently sought legal representation at these proceedings based on the complexity of the allegations and the lack of information provided to him. This request was refused by Iarnród Éireann on the ground that legal representation is not provided for in the company's disciplinary policy (the Code). An employee could only be accompanied by a colleague or a trade union representative.
It was accepted by the parties that the Code complied with the statutory Code of Practice on Grievance and Disciplinary Procedures.
High Court Proceedings to Prevent Disciplinary Hearing
Mr McKelvey issued High Court proceedings to prevent the disciplinary hearing being undertaken without the presence of legally representation. The High Court ruled in Mr McKelvey's favour in July 2017, applying the criteria set down in Burns v Governor of Castlerea Prison. Iarnród Éireann appealed to the Court of Appeal which overturned the High Court decision. Mr McKelvey then appealed to the Supreme Court.
Supreme Court Decision
The Supreme Court affirmed the Court of Appeal decision and refused to restrain the disciplinary proceedings. The Court considered that Burns sets down the correct approach to be taken as to whether legal representation is required in disciplinary proceedings. The various factors to be taken as a starting point as set out in Burns (which dealt with a prison officer) are:-
- the seriousness of the charge and of the potential penalty;
- whether any points of law are likely to arise;
- the capacity of a particular prisoner to present his own case;
- procedural difficulty;
- the need for reasonable speed in making the adjudication, that being an important consideration; and
- the need for fairness as between prisoners and as between prisoners and prison officers.
These considerations should be taken into account as part of an overall assessment of the requirements of procedural fairness and do not need to be separately established.
The Supreme Court agreed with the observation in Burns that "legal representation will only be required as a matter of fairness in exceptional cases" and noted that this provides overall guidance on the approach to be followed in determining whether legal representation is required in disciplinary proceedings.
In this case the Supreme Court could not find any exceptional circumstances necessitating legal representation for Mr McKelvey during the disciplinary process. This was particularly so given that the disciplinary proceedings had not even commenced at the time legal proceedings were initiated. However, this did not necessarily mean that Mr McKelvey could not assert at a later stage that he is entitled to legal representation due to the way the disciplinary proceedings progress.
Clarity for Employers
This decision by the Supreme Court brings welcome clarity to the issue of legal representation in disciplinary proceedings. The High Court in 2017 in Lyons v Longford Westmeath Education and Training Board had held that employees facing potential dismissal or reputational damage following the outcome of an investigation were entitled to legal representation at all stages of the investigation process. The decision in McKelvey makes it clear that legal representation in disciplinary proceedings will only be required in exceptional circumstances.
The timing of the request for legal representation and the commencement of legal proceedings are also important elements to consider. An employee must be able to clearly establish that legal representation is necessary to ensure fair procedures at the time legal proceedings are initiated. Even if an application to court to restrain disciplinary proceedings is refused, this is not a bar to an employee making a subsequent application.