Court of Appeal limits legal representation in disciplinary inquiries to “exceptional circumstances”Tuesday, 06 November 2018
On 31 October, in the case of Iarnród
Éireann / Irish Rail v Barry McKelvey, the Court of Appeal emphasised that
employees who are the subject of internal disciplinary inquiries will not
normally be entitled to have legal representation during such inquiries. The
Court of Appeal overturned a decision of the High Court in this case.
Mr McKelvey is an inspector in Iarnród Éireann. He is the subject of a formal disciplinary process in relation to alleged “theft of fuel” arising from the use of company-issued fuel cards. His employer’s disciplinary procedure provides that he may be represented by a fellow employee or a trade union representative. The procedure does not provide for legal representation and Mr McKelvey was denied legal representation when he requested to be legally represented at a proposed disciplinary hearing.
The High Court found that it would be contrary to the principles of natural justice and fair procedures to require Mr McKelvey to engage with the proposed disciplinary hearing without the benefit of legal representation. The Court of Appeal took a different view.
Burns is the leading case on the circumstances in which an entitlement to legal representation arises
Both the High Court and the Court of Appeal agreed that the leading case in relation to legal representation in disciplinary investigations is Burns and Hartigan v Governor of Castlerea Prison  IR 3 IR 682. In that case, the Supreme Court acknowledged that there are circumstances in which an employee will be entitled to legal representation in disciplinary proceedings but held that the cases in which an employer would be obliged to exercise discretion in favour of permitting legal representation would be exceptional. The Supreme Court adopted principles set out in an English case, Regina v Home Secretary Ex Parte Tarrant  QB 251.
The Tarrant case requires an employer to consider the following factors as part of the overall decision about whether an entitlement to legal representation arises:
(a) the seriousness of the charge and the proposed penalty;
(b) whether any points of law are likely to arise;
(c) the capacity of the particular person to present his or her own case;
(d) procedural difficulty;
(e) the need for reasonable speed in making the adjudication, that being an important consideration; and
(f) the need for fairness between the different categories of people involved in the process.
In the McKelvey case, the Court of Appeal found that the circumstances of the case were such that, applying the principles set out in the Burns and Tarrant cases, no entitlement to legal representation arose. Delivering the judgment of the Court, Irvine J made the following comments.
“While it is true to say that Mr McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view, the allegation of misconduct made against Mr McKelvey is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in position to deal with adequately with the assistance of [his trade union representative].”
Lyons case does not establish a right to legal representation in all cases
The Court briefly considered the case of Lyons v Longford Westmeath ETB  29 ELR 35. In that case the High Court decided that the failure (by a team conducting an investigation into alleged bullying) to allow the accused person to be legally represented amounted to a breach of the constitutional right to fair procedures of the accused person.
In McKelvey, the Court of Appeal has implicitly suggested that the Lyons decision was incorrect in respect of the entitlement to legal representation. The Court of Appeal said that that the correct test is set out in the decision of the Supreme Court in Burns.
Status of SI 146/2000
The Court also made supportive statements in respect of the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000). That code of practice provides for a right for an employee to be represented by a colleague of the employee’s choice or a registered trade union but not any other person or body unconnected to the enterprise. Irvine J complimented the code of practice and commented that
“the fact that the code is silent on legal representation is perhaps indicative of the view that it should be possible for organisations to carry out inquiries into alleged misconduct on the part of employees on an “in house” basis without the need to involve lawyers.”
Cross-examination in workplace investigations
The Court of Appeal’s decision in the McKelvey case does not bring much clarity in respect of another aspect of the decision of the High Court in the Lyons case. In Lyons, the High Court held that both an accused person and his or her accuser have constitutional rights to use their respective legal representatives to cross-examine each other in investigations in which the accused person’s job is at stake.
In that respect the decision in Lyons appears to be at odds with other decisions of the High Court (including Shortt v Royal Liver Assurance Ltd  IEHC 33 and O’Leary v An Post  IEHC 237) and with decisions of the Supreme Court in cases such as Mooney v An Post  9 ELR 238 and Rowland v An Post  1 IR 355. Those other decisions implied that cross-examination will be an entitlement in some, but not all, cases in which an individual’s job is at stake.
The issue of cross examination was not decided in the McKelvey case as Iarnród Eireann has at all times made clear that Mr McKelvey will be entitled to cross examine the witnesses.
The Court of Appeal did make some comments that might be interpreted as implying that cross-examination is a broadly-held right in workplace disciplinary processes. In particular, the Court referred to the fact that none of Mr McKelvey’s other rights in this case were in dispute, including his “right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses”.
However, in another part of the McKelvey judgement the Court suggested that it is not necessary, in a disciplinary inquiry into misconduct alleged against an employee, “that the procedure to be deployed should ape the type of hearings with which we are familiar in criminal or civil proceedings before the courts.” The Court also counselled against putting too much reliance on cases that relate to procedures conducted by professional regulatory bodies such as the Medical Council. In workplace disciplinary investigations, different considerations arise than in professional regulatory investigations.
The extent of the right to cross-examine remains unclear
The safer interpretation of the McKelvey decision is probably that it does not clarify the apparent inconsistency between the Lyons case and other decisions in respect of cross-examination. It remains the case that an accused person always has the right to challenge (in an appropriate manner) the evidence against him or her. It is also certainly the case that there will be some circumstances in which an accused person will be entitled to cross-examine his or her accusers. However the question of whether the right to conduct courtroom-type cross-examination exists in every case – or only in some cases – remains an open question for the moment.