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Worker’s rights = Re-think on legal representation for employees in internal investigations

In an important recent decision the Court of Appeal has indicated a possible re-think on an employee’s right to legal representation during an internal disciplinary hearing.

In its decision in Iarnród Éireann/Irish Rail v Barry McKelvey the Court of Appeal reversed an earlier finding of the High Court that an employee was entitled to legal representation in an internal disciplinary hearing, citing Burns & Hartigan v Governor of Castlerea Prison [2009] 3 IR 682 as the leading authority.

Background to the Court of Appeal decision

The respondent, Mr McKelvey, had been employed with the appellant company since 1999 and had advanced to a managerial role. In 2016, the company identified discrepancies in the purchase of fuel within Mr McKelvey’s unit which had resulted in significant financial loss. Mr McKelvey was informed that the company required him to participate in their disciplinary process to investigate the theft. Mr McKelvey requested a disciplinary hearing with representation by a solicitor and counsel. This was refused on the basis that the appellant’s procedures did not provide for such representation and a disciplinary process involving lawyers would make the process costlier and have adverse effects for the relationship between management and staff. In June 2017 the High Court granted an injunction restraining the inquiry until Iarnród Eireann allowed Mr McKelvey legal representation.

Review

In overturning the decision, the Court of Appeal disagreed with the conclusion that there were factual or legal complexities in the case. The Court outlined that there were no particular circumstances which would warrant legal representation. The potential penalty of dismissal and resulting impact on the respondent’s reputation were considered far from exceptional. The Court referred to the judgment in Regina v Home Secretary ex parte Tarrant [1985] 1 QB 251 which listed relevant factors when determining the question of representation, including:

  • the seriousness of the charge and potential penalty,
  • whether points of law were likely to arise,
  • the capacity of an individual to present their own case, and
  • the need for fairness between the parties.

Decision of Irvine J

Relying extensively on the judgment in Burns, Irvine J found that the High Court had erred in law by granting an injunction that restrained the inquiry until legal representation was granted. The judgment refers to the guidance provided by Geoghegan J in Burns to the effect that it is wholly undesirable to involve lawyers in workplace investigations unless it can be established that there is something exceptional about the matters to be scrutinised such that it would be reasonable to conclude that the proposed hearing could not be a fair one in the absence of legal representation.