Supreme Court Rules Employees Only Entitled to Legal Representation In Exceptional Circumstances in Internal Proceedings

In the recent case of McKelvey v Iarnród Éireann, the Supreme Court ruled that only in exceptional circumstances is an employee entitled to legal representation in internal disciplinary proceedings.

Background

The facts of this case centred on the alleged misuse of a company issued fuel card by Mr. McKelvey, an employee of Iarnród Éireann.  When disciplinary proceedings were initiated against Mr. McKelvey, his request to have legal representation for the disciplinary proceedings was refused by his employer on the basis that its disciplinary policy made no provision for such legal representation.

The High Court

Mr. McKelvey was granted injunctive relief by the High Court, with the Court applying the criteria established in the case of Burns v Governor of Castlerea Prison which set out that employers should assess the seriousness of the charge and potential penalty, whether any points of law are likely to arise, procedural difficulty, the capacity of the individual to present their own case, the need for reasonable speed in making an adjudication and the requirement for fairness.

The Court of Appeal

Whilst agreeing with the criteria considered by the High Court, the Court of Appeal overturned its Judgment.  It held that the main question to be determined was whether the disciplinary proceedings would be unfair or a breach of natural and constitutional justice if the employee in question did not have the benefit of such legal representation.

The Supreme Court

Affirming the decision of the Court of Appeal, the Supreme Court accepted that there may be circumstances where an employee will be entitled to legal representation during internal disciplinary proceedings, however this will only be the case in “exceptional circumstances”.  The Supreme Court held that the question for the Courts to consider is whether legal representation is necessary, rather than merely being of some advantage to the employee concerned.

Conclusion

The Judgment of the Supreme Court will be welcomed by employers in Ireland and provides clarity on dealing with requests from employees for legal representation in disciplinary proceedings.  Whilst the Judgment sets a relatively high threshold for employees to meet, employers should nevertheless exercise caution and assess the individual circumstances of each case to determine whether such circumstances exist which may warrant legal representation.

How we can help?

If you have any queries or concerns, or would like to discuss the above in further detail, please feel free to contact Richard Lee, Partner, in the Employment & Benefits Department of BHSM on 01 440 8300 / rlee@bhsm.ie.

This article is for general information purposes.  Legal advice must be obtained for individual circumstances.  Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.