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Right to Legal Representation in a Disciplinary Inquiry – where do we stand?

The recent decision of the Court of Appeal in Iarnród Éireann/ Irish Rail v. Barry McKelvey, [2018] IECA 346 has brought much-needed clarity to the above question.
Mr. McKelvey, an inspector with Iarnród Éireann was subject to a disciplinary process in relation to the alleged “theft of fuel” arising from the use of company issued fuel cards. The disciplinary procedure of the respondent was such that Mr. McKelvey was entitled to be represented only by a trade union representative or fellow employee. However, when Mr. McKelvey requested to have legal representation for the disciplinary hearing, his request was denied. The respondent relied upon the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000). Mr McKelvey applied to the High Court and was granted an injunction restraining the appellant from commencing a disciplinary hearing against Mr. McKelvey unless his request for legal representation was agreed to.

The Court of Appeal overturned the decision of the High Court and ruled that Irish Rail was not required to allow an employee have legal representation before it embarks on a disciplinary inquiry. Ms. Justice Irvine’s judgment found the High Court had erred in law, by granting injunctions restraining the respondent’s inquiry, until the employee’s claimed entitlement to legal representation was agreed to. The court found that there was no special or exceptional circumstances in this case which would warrant legal representation in order to obtain a fair trial.

Prior to Ms. Justice Irvine’s judgment, the decision of Eagar J. in Lyons v. Longford Westmeath Education and Training Board [2017] IEHC 272 had caused some ambiguity in this area. The court found that an employee had a right to legal representation when facing possible dismissal or an adverse impact upon their reputation. The court held that the failure to allow an accused person the right to legal representation amounted to a breach of the constitutional right to fair procedures of the accused person.

However, the leading case as agreed by both the High Court and the Court of Appeal in McKelvey, in relation to legal representation in disciplinary inquiries is Burns v. Governor of Castlerea Prison [2009] 3 I.R. 682. Geoghegan J. of the Supreme Court, adopted in this jurisdiction, a number of factors to be considered by an employer when faced with a request that an employee be entitled to legal representation at a disciplinary hearing, as identified by Webster J. in Regina v. Home Secretary ex parte Tarrant [1985] 1 Q.B. 251, namely:-

  1. the seriousness of the charge and of the potential penalty;
  2. whether any points of law are likely to arise;
  3. the capacity of a particular prisoner to present his own case;
  4. procedural difficulty;
  5. the need for reasonable speed in making the adjudication, that being an important consideration; and
  6. the need for fairness as between prisoners and as between prisoners and prison officers.

Geoghegan J, qualified this by stating that the list was merely the kind of factors that may be relevant in the consideration of whether legal representation is required in the interest of a fair hearing. Further, the essential point to be considered is “…whether from the accused’s point of view legal representation is needed in the particular circumstances of the case. I would reiterate that legal representation should be the exception rather than the rule.”

In applying the criteria, the Court of Appeal, found that the standard to have legal representation was not met in the particular circumstances of this case. It is still necessary for employers to consider a request for legal representation, however it remains to be seen what will constitute exceptional circumstances.


30th November 2018

Anne O’Connell
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2

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