The Supreme Court has said that employees have no automatic right to legal representation at internal disciplinary proceedings. The Court said that, if employees want to bring legal representation, they much establish an “exceptional” case that the proceedings would not be fair without it.
This case concerned an Irish rail employee who faced disciplinary proceedings over his alleged irregular purchases of fuel using a company card. The employee in question sought to be represented by a solicitor and barrister at the hearing but was told by Irish Rail that this was unnecessary as he was going to be represented by an experienced trade union official.
Mr McKelvey had already obtained a High Court injunction which prevented the proceedings from taking place until such time as he was allowed to use representation. This injunction was overturned by the Court of Appeal. As the case dealt with issues of general public importance, the Supreme Court granted leave to appeal the Court of Appeal’s decision.
Giving the judgment of the Court, Chief Justice Frank Clarke outlined the established law on legal representation at internal disciplinary proceedings. Following the precedent of the 2009 Burns v Governor of Castlerea decision, the Chief Justice highlighted that the most important factor is that the process is fair, stating that “it is only in those cases where legal representation is necessary to achieve a fair hearing that any implied entitlement to such representation can be said to exist”. Just because a case may be better presented by a solicitor or barrister does not mean that the lack of representation will jeopardise the fairness of the trial. The judgment also left open the possibility that Mr McKelvey could become entitled to legal representation, should the proceedings demand it.
The combination of a number of factors such as a serious allegation and particularly complex issues of law could lead to an “exceptional” case where representation was required but this was not such a case. The Chief Justice went on to say that he could not see anything in the allegation, the likely evidence, or the process likely to be followed which would put the disciplinary proceedings “beyond the competence of an experienced trade union official.” This leaves open the possibility that non-unionised workers could seek representation.