In recent months there has been much debate in the wake of the conflicting High Court decisions in Lyons v Longford and Westmeath ETB and NM v Limerick and Clare ETB. Both cases centred on the extent of natural justice rights and fairness to be afforded to employees faced with investigation and disciplinary processes, particularly where dismissal is a possible outcome.
The Court of Appeal appears to have restored some clarity in this debate with its subsequent decision in Iarnród Éireann v Barry McKelvey delivered on 31 October 2018.
Mr McKelvey, an inspector for Irish Rail, was subject to an investigation regarding anomalies in the use of a company fuel card during the years 2014 to 2016.
When Irish Rail’s investigation concluded, it was recommended that Mr McKelvey attend a disciplinary meeting where he would be given an opportunity to defend the charge. The accusation levelled against him related to “theft of fuel through the misuse of company fuel card(s), which resulted with the company suffering a significant financial loss”.
Mr McKelvey was afforded the assistance of an experienced trade union representative. However, he asked for legal representation at the disciplinary meeting. He applied to the High Court to stop the disciplinary hearing until it was decided that he had the right to legal representation at the disciplinary hearing.
The High Court granted an order that the disciplinary process was to stop until Mr McKelvey had legal representation.
The High Court cited a number of reasons for arriving at this decision. These included:
- Imprecision of the charge
- Impact on reputation and future employment prospects
- The fact that multiple points of law would arise in respect of which Mr McKelvey would require the guidance of a lawyer
Court of Appeal
The Court of Appeal found that the High Court had identified the correct factors to be considered by an employer exercising its discretion to permit legal representation. However the Court found that the factors were misapplied in Mr McKelvey’s case. Therefore, the Court overturned the High Court decision. It stated that legal representation would only be appropriate in exceptional circumstances, even if the factors identified in the High Court were present. The Court of Appeal found that, even in a case where the disciplinary charge was criminal in nature, it was possible to accord with the principles of natural and constitutional justice without the need for legal representation. The Court further found that the assistance of an experienced trade union representative was sufficient for the disciplinary hearing.
The Court of Appeal did not expressly give an opinion on the right to cross-examination because Irish Rail had conceded that Mr McKelvey had a right to cross examination as part of the disciplinary process.
The Court left it open for Mr McKelvey to apply for legal representation if a complex matter of law arose at the disciplinary hearing.
Clearly it is only in exceptional circumstances that a disciplinary hearing won’t accord with the tenets of constitutional and natural justice if the employee is not afforded the right to legal representation.
However, it is very important to realise that this judgment did not affect an employee’s right to cross examine witnesses. In fact, it reaffirms this right. Following the Court’s logic that theft is not seen as worthy of legal representation despite the potential reputational damage, allegations of bullying and sexual harassment may be seen likewise. Accordingly, the die may have been cast for a fresh battle on these issues.
For more information and expert advice on the application of disciplinary procedures, contact a member of our Employment & Benefits team.
  IEHC 272
 NM v Limerick and Clare ETB  IEHC 588