Legal Representation in Disciplinary Hearings*
The Supreme Court recently ruled on this issue in the case of McKelvey and Iarnrod Eireann / Irish Rail Supreme Court 2018/178.
In this case in the High Court the High Court directed that the plaintiff as employee was entitled to legal representation. Both the Court of Appeal and the Supreme Court disagreed with this. It has been reported that the effect of this decision is that a person is not entitled to legal representation in a disciplinary process except in exceptional circumstances. While the word “exceptional” is used in the decision of the Chief Justice the decision in this case is more complex.
The procedures contained in the Iarnrod Eireann Disciplinary Code were agreed between the company and the relevant trade union representing its employees and were accepted by a Ballot of staff in 1994. The Court pointed out that it was accepted by the parties that the code was in compliance with the code of practice set out in the Industrial Relations Act 1990 (Code of Practice and Grievance and Disciplinary Procedures) (Declaration) Order 2000 SI 146/21000 the purpose of which is to provide guidance to employers, employees and their representatives on the general principles which apply in the operation of grievance and disciplinary procedures. That code is silent on the question of legal representation. Paragraph 4.4 the Court pointed out that the code defines an employee representative as including a colleague of the employees choice and a registered Trade Union but not any other person or body unconnected with the enterprise. The Court stated at paragraph 3.13 that notwithstanding that the company code refers only to an employee’s right of representation by a fellow employee it was not disputed that the company have discretion to permit an employee to be legally represented. The Chief Justice set out the legal principles and held that it was accepted in the course of both written and oral procedures before the Supreme Court by both sides that the decision of Geoghegan J in Burns –v- Governor of Castlerea Prison 2009 IESC33 represented the law concerning the entitlement to have legal representation at a disciplinary process. The Burns case at paragraph 14 of the Judgement as regards legal representation set out six tests namely;
- The seriousness of the charges and of the potential penalty;
- Whether any point 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”.
The Chief Justice at paragraph 5.5 referring to the decision of the Court of Appeal stated;
“In particular, Irvine J relied on the proposition set out at paragraph 13 of Geoghegan J’s Judgement that “the cases for which the respondent would be obliged to exercise the discretion in favour of permitting legal representation would be exceptional”.
Importantly this case at paragraph 6.3 the Chief Justice said the statement of Geoghegan J to the effect that legal involvement may be necessary in some limited circumstances but ordinarily will not be necessary involves a finding that it is only in those cases where legal representation is necessary to achieve a fair hearing that any applied entitlement to such representation can be said to exist”.
The issue of “necessity” importantly was addressed by the Chief Justice at paragraph 6.5 when it was stated;
“There may be cases where the forensic skills of an experienced advocate with a legal qualification may enable the presentation of the case in a more favourable light. But it seems to me that to say that a case might be somewhat better presented by a Lawyer falls a long way short of saying that the presence of a Lawyer is necessitated in order for the process to be fair”. The above is an important statement by the Court in that the fact that a disciplinary matter may be better presented does not in itself make the process unfair.
While the case has been reported on the basis of exceptional circumstances the Judgement makes it clear that the issue of legal representation being necessary applies where it is necessary to ensure a fair process rather than potentially being merely of some possible advantage to the relevant employee. Therefore the test as set by the Chief Justice is that it is one of necessity. As is clear from the Judgement in the majority of cases representation by an experienced Union Official will be sufficient. The Judgement of Mr. Justice Peter Charleton when coming to the same conclusion arrived at it from a different point. Mr. Justice Charleton in his judgement referred in particular to the provisions of Section 14 (1) of the Unfair Dismissals Act 1977 which provides that an employer shall not later than 28 days after entering into a contract of employment with an employee give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purposes of dismissing the employee. He pointed out that representation is at the core of this. Subsection 3 provides that the procedure referenced is one that has been agreed upon by or on behalf of the employer concerned and by the employees concerned or a trade union or an accepted body within the meaning of the Trade Union Act 1941. The case of Mooney –v- An Post 1998 4IR288 being a Judgement of Mr. Justice Barrington was quoted where at page 298 it was said;
“If the contract or the Statute governing a person’s employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the employer to show that he complied with this procedure…”
It was pointed out by Mr Justice Charleton that here the Grievance Procedure clearly states that an employee is entitled to be represented at a Disciplinary Hearing for the purposes of this Code of Practice. The definition proceeds to state that the employee is not entitled to be represented by any other person or body unconnected with the enterprise. He held that it was a matter of contract that disposes of the argument by the employee that the procedures involved require the presence of lawyers.
It was pointed out by him in a judgement that a difficulty may arise where an employment contract is silent as to grievance procedures this involving a breach of Section 14 (1) of the Unfair Dismissal Acts 1977. He stated at paragraph 12;
“No comment is here made as to whether the appropriate course is to apply the standard grievance procedure promulgated under the Industrial Relations Act 1990. That would appear to many to be a sensible course, bearing in mind the procedures were invented to assist in coming to the truth and, in a proper case, are not an end in themselves”. While Mr. Justice Charleton gave a similar judgement but came to a decision on a different basis it does raise the issue that where an employer complies with the provisions of Section 14 (1) of the Unfair Dismissal Act by putting in place a disciplinary procedure which complies with the code of practice that in those circumstances there is a contractual situation between the employer and the employee and in those circumstances the employee is only entitled to the representation as set out in the contract or by extension in the code. This case dealt with the issue of representation by a lawyer at the disciplinary process. If a matter goes to the WRC then an Adjudication Officer will look at the procedure which was adopted. If the procedure at a minimum does not comply with the Code of Practice on Grievance and Disciplinary Procedures then in those circumstances as the burden of proof is on the employer to show that the dismissal was fair failure to comply with same despite what may be in a contract will not be sufficient to say that the employer complied with their disciplinary procedure and that that is the end of matters. However, if an employer, in our opinion, has a disciplinary process which complies with the Code of Practice on Grievance and Disciplinary Procedures then in those circumstances where the employer complies with same there will be no issue as regards that procedure being in itself unfair. It will depend on the particular circumstances of a particular case whether or not legal representation will be required. Just because legal representation may mean that an employee may be better represented is not in itself sufficient. It would in our opinion be extremely difficult for an employer to exclude representation by a union representation even where the employer does not recognise a union. Limiting representation to a fellow worker who may have little or no skills in the area of representation in a disciplinary matter is going to make it extremely difficult for an employer to contend that the process was fair. It would be our view, through the issue was not covered in those case, that if an employer sought to restrict an employee simply to representation by a fellow employee, that in those circumstances a Court may hold that that is an exceptional circumstance allowing legal representation as a necessity but certainly would be our view that it would be difficult to argue that representation by a Union would not be necessary or could be excluded.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.