The Supreme Court’s determination of that question did four things.

• It gave a short answer to the question: an employee will only have a right to legal representation in disciplinary processes in exceptional circumstances.
• It set out the general principles and framework for analysing whether or not there is a right to legal representation in any particular case.
• It found that Mr McKelvey did not have a right to legal representation in this specific case and accordingly upheld last year’s Court of Appeal decision (see our client briefing on that decision here).
• It clarified the circumstances in which the Courts will get involved in ongoing workplace disciplinary proceedings.

Background

The facts were not in dispute. Irish Rail allowed Mr McKelvey, its employee, to be represented in the disciplinary process against him by either a colleague or a trade union representative. Mr McKelvey asked to be allowed to be legally represented and Irish Rail refused.

Mr McKelvey claimed his trade union representative was subject to a conflict of interest because a number of Mr McKelvey’s colleagues, who were the subject of similar allegations, were also represented by the same trade union. Mr McKelvey argued those colleagues had different interests to him and one trade union official could not fairly represent all of those different interests.

The High Court granted Mr McKelvey an injunction preventing Irish Rail from running the disciplinary process against him. The Court of Appeal overturned this, following an appeal by Irish Rail, an outcome which Mr McKelvey in turn appealed to the Supreme Court.

What is the role of the Courts in ongoing workplace disciplinary proceedings?

The Supreme Court began by emphasising that the Courts should not get involved in ongoing workplace disciplinary proceedings:

“unless it is clear at the stage when an injunction is sought that something has occurred which is sufficiently serious and incapable of being cured so that there was no realistic prospect that a legally sustainable conclusion could be reached at the end of the process.”

The Supreme Court noted this principle of reluctance to intervene in such matters had been emphasised by it in Rowland v An Post in 2017. The exception to this would be a disciplinary process which had “gone off the rails” to the degree that there was no reasonable prospect its outcome could be sustainable in law. In such circumstances, the Courts “can and should intervene at an interlocutory stage.” To grant an injunction, it must be clear that an unsustainable outcome would otherwise result. Mere speculation was not enough.

What test did the Supreme Court set down for assessing whether or not an employee had a right to legal representation in a particular case?

The Supreme Court endorsed the factors for assessing necessity of legal representation set down by it in Burns v Castlerea Prison. Those factors were:

• What is the seriousness of the charge and of the potential penalty?
• Are points of law likely to arise?
• What is the capacity of a particular employee to present his own case?
• What is the degree of procedural difficulty?
• What is the need for reasonable speed in making the decision?

The Supreme Court said that the considerations above did not each have to be separately established in every case. Instead, they are factors to be taken “into account in an overall assessment as to whether a fair process can take place without legal representation.”

The Supreme Court commented on the undesirability of involving lawyers in workplace investigations because of the delay and increased costs which would follow, “unless it is established that there is something exceptional about the matters in question.”

How did the Supreme Court apply its test to this case?

The disciplinary process concerning Mr McKelvey centred on allegations that he misused Irish Rail’s fuel card for the benefit of himself and others. The Supreme Court decided that his right to representation could be discharged by him being allowed an experienced trade union representative.

In short, the Supreme Court was unconvinced that a fair process could not ensue without legal representation. The allegation against Mr McKelvey was “easy to understand”. The evidence against him involved “straightforward questions of fact.” The Supreme Court found an experienced trade union official could have ably represented Mr McKelvey.

In relation to Mr McKelvey’s objection to the particular trade union representative in question, the Supreme Court held that there was no evidence to suggest that another experienced trade union official could not have represented him instead. This meant Mr McKelvey’s argument that his trade union representative had a conflict of interest was completely moot and “purely speculative”.

The Supreme Court’s view of what fair procedures required in this case was that Mr McKelvey and his trade union representative should “be given reasonable opportunity to challenge the evidence of any such persons on any reasonable basis.” The Supreme Court emphasised that “to say that a case might be somewhat better presented by a lawyer falls a long way short of saying that the presence of a lawyer is necessitated in order for the process to be fair.” In summary, the question was not whether Mr McKelvey would be better represented by a lawyer but rather whether he must be so represented to vindicate his constitutional right to fair procedures.

The fact that the disciplinary process could lead to Mr McKelvey being dismissed did not mean his case required legal representation. Nor did the fact that the allegations against him could constitute the criminal offence of theft. The Supreme Court noted the factor relating to the seriousness of the charge and the potential penalty carried limited weight because the outcome of the disciplinary process could have no impact on any subsequent criminal trial where the burden of proof was also higher.

Advice to employers

There is much in the Supreme Court’s decision for employers to welcome. It confirms the exceptional nature of the right to legal representation in disciplinary processes, provides meaningful guidance on how to assess when such exceptional circumstances will exist and reaffirms the reluctance of the Courts to become involved in workplace disciplinary proceedings more generally.

Prudent employers will be careful to remember that employees have a right to legal representation in exceptional circumstances.

The decision should also prompt non-union employers and employers who do not permit trade union representation to re-evaluate the approach. This is because it is unclear if the Supreme Court would have reached the same conclusion had the employee’s only option been to be represented by a work colleague. Indeed two recent Workplace Relations Commission decisions, on which we will publish a separate client update next week, indicate strongly that, while there is still no automatic right for an employee to be represented by a trade union official, an employer who refuses an employee representation by a trade union official may fail to defend any unfair dismissal claim arising on procedural grounds.