No automatic employee right to legal representation in workplace procedures

The Supreme Court has delivered a ruling on whether employees enjoy a right to legal representation during internal employment procedures.

The ruling confirms that employees have no automatic right to have access to a solicitor during an internal workplace disciplinary procedure.

The decision is a welcome one for employers as it clarifies a question that has produced conflicting judgments in recent years.

McKelvey v Irish Rail

The case in question began in the High Court when an Irish Rail employee, Barry McKelvey successfully obtained an injunction to stop a workplace investigation into an allegation of theft connected to the inappropriate use of a fuel card.

Mr McKelvey had requested legal representation when he learned that he would be subject to a formal disciplinary process.

Mr McKelvey responded to Irish Rail’s refusal to allow legal representatives to run his case by successfully seeking injunctive relief in the High Court.

Irish Rail appealed the High Court ruling to the Court of Appeal who overturned the decision to grant the injunction. Mr McKelvey then appealed the matter to the Supreme Court.

Supreme Court decision

The Supreme Court noted that there are conflicting judgments on the issue of legal representation at workplace proceedings and that it was a matter of general public importance meriting a ruling by the court of last resort.

Supreme Court Chief Justice Frank Clarke stated that the key issue to be determined was the entitlement of an employee to be legally represented at an internal disciplinary hearing under an employer’s policy.

The court held that Mr McKelvey did not need his case to be presented by a lawyer for the disciplinary process to be fair. Having examined the procedure, the Supreme Court found nothing in the allegation against Mr McKelvey, the likely evidence, or the process likely to be followed that would render the disciplinary proceedings “beyond the competence of an experienced trade union official”.

The Supreme Court stated that courts should be reluctant to intervene in an internal employer disciplinary process unless something so serious occurs that the employee’s right to fair procedures and natural justice is infringed.

The court accepted that legal representation may be required in “exceptional” cases. If for instance, a series of factors such as a serious allegation, complicated legal issues or convoluted facts existed, this would amount to an “exceptional” case justifying the need for legal representation.

The Supreme Court held that Mr McKelvey’s disciplinary process fell short of falling into the “exceptional” case category.

Impact on employers

The judgment is welcome in that it clarifies that legal representation in internal employer hearings is not an automatic employee entitlement and is only necessary in certain ‘exceptional’ or difficult cases to ensure the employee receives a fair hearing.

Employers should nevertheless exercise discretion if an employee makes a request to be legally represented in an internal workplace process. As Mr McKelvey enjoyed the benefit of the right to be accompanied by an experienced trade union official, non-unionised employers who only permit employees to be accompanied by a friend or colleague at internal procedures may expose themselves to allegations that their procedures are unfair if they refuse an employee request to be legally represented in a complex case.

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