Supreme Court Decision for Employers on Employee Representation

by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.

In a recent employment law article we reported on the matter of legal representation for employees at internal employer hearings.

In a timely follow up development, the Supreme Court has recently issued a definitive decision in a long running legal dispute involving Irish Rail as employer, where legal representation at a disciplinary hearing was at the heart of the issue.  Relatively few employment law cases find their way to the Supreme Court but, when they do, the Court often takes the opportunity to clarify the law on key issues.

In McKelvey –v- Irish Rail the employee (Mr McKelvey) had been accused by his employer of misuse of a fuel card amounting to theft. A disciplinary process was commenced and a disciplinary hearing scheduled. The employee sought to bring a solicitor and a barrister to represent him at that disciplinary hearing.  The employer refused pointing out that he already had the support of a trade union official and that he could continue with such representation or, alternatively, bring a colleague.

The resulting standoff spiralled into a legal dispute. The employee sought (and initially obtained) a High Court injunction to halt the disciplinary process. The litigation continued in the Court of Appeal and ultimately the Supreme Court. The Supreme Court was asked to deal with the issue as to whether the employee should have been allowed bring his lawyers to the disciplinary hearing.

The Supreme Court referred to and reiterated one of its earlier judgments – Burns v Governor of Castlerea Prison[1].  That Burns case had held that legal representation in internal employer hearings might be required in “exceptional cases” to ensure a fair hearing depending on factors such as the seriousness of the allegation, the potential sanction and whether legal points or procedural difficulties needed to be considered.

Looking at the facts in Mr. McKelvey’s situation, the Supreme Court ruled that he failed to establish an “exceptional” case and was not entitled to legal representation at the disciplinary hearing. Mr McKelvey already had a trade union representative assisting him with the process and the Court said it could not see anything in the internal process or the allegations against him which would put the disciplinary proceedings “beyond the competence of an experienced trade union official”. This was particularly the case as the allegations were “easy to understand” and involved “straightforward questions of fact.”

In doing so the Court ruled that legal representation in internal employer hearings is not the default situation, but might be required in exceptional cases to ensure a fair hearing.

Additionally, the Supreme Court decision in McKelvey effectively further distances the 2017 case of Lyons v Longford & Westmeath, which had initially been perceived as holding that employees have a wider right to legal representation at internal employer investigation hearings.

However, as with all contentious internal employment matters, employers should be careful to consider the individual circumstances of each case to determine if the situation is indeed ‘exceptional’ and warranting legal representation.

Overall though, the decision will be welcomed by employers and their representatives. Beyond the net question at stake, the decision also suggests that the courts should be slow to get involved in ongoing workplace disciplinary proceedings unless something “sufficiently serious” has occurred.

[1] [2009] IESC 33

About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.

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