Cases since Lyons have clarified and limited the scope of the decision by confirming that the right arises at a disciplinary hearing before a final decision on sanction is made.
However, a recent decision of the Court of Appeal represents a stark departure from this position.

The Court of Appeal in McKelvey opted to apply the principles set out in Burns v Governor of Castlerea Prison (namely that an entitlement to legal representation exists only in exceptional circumstances) to frame its decision on an employee’s right to legal representation in a disciplinary inquiry.

The right to legal representation also arose in a recent Labour Court decision. The Labour Court in Burns v Component Distributors (CD Ireland) concluded that no right to legal representation arises in a redundancy process.

Iarnroid Eireann / Irish Rail v Barry McKelvey

The Court of Appeal ruled that Irish Rail is not required to allow an employee have legal representation before it embarks on a disciplinary inquiry into an allegation of misconduct arising from alleged “theft of fuel” through misuse of a company fuel card. The Court of Appeal in its judgment found the High Court erred in law by granting injunctions restraining the inquiry, until the employee’s claimed entitlement to legal representation was agreed to.

The Court held that, on the facts as they stood in May 2017 when Irish Rail initiated the inquiry and refused Mr McKelvey’s application for legal aid, he did not require lawyers. There were no special or exceptional circumstances which warranted the High Court finding Mr McKelvey could not get a fair hearing in accordance with natural justice unless he was represented by solicitor and counsel. While the High Court was entitled to have regard to the serious nature of the charge against Mr McKelvey, the potential penalty and potential impact on his reputation, these were matters “far from exceptional” in the context of workplace investigations and not dispositive of his entitlement to lawyers. The Court stated:

“Whilst an employee facing a disciplinary inquiry in respect of alleged misconduct may be at risk of inter alia dismissal from their employment and significant damage to their good name, it should nonetheless generally be possible, save in exceptional circumstances, for such employee to obtain a fair hearing in accordance with the principles of natural justice without the need for legal representation”.

The Court stressed that none of the employee’s other rights, including to be heard in relation to the allegations and to make representations, were in dispute.

The Court stated that Mr McKelvey could also, at any stage during the inquiry, renew his request to be represented by lawyers should matters emerge which neither he nor his trade union representative could reasonably be expected to deal with without such legal representation.

The Court held that Irish Rail’s disciplinary policy and procedures were fully compliant with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) and noted that all disciplinary inquiries must be carried out in a fair manner and in compliance with the requirements of natural and constitutional justice. For the process to meet that standard, it was not necessary, save in exceptional circumstances, for an employee to be legally represented.

The Court was of the opinion that a disciplinary process which routinely involved lawyers would slow down the process, make it more costly and have “significant adverse effects” for the relationship between management and employees and between employees themselves.

Mr McKelvey was an employee of Irish Rail since 1999 and an inspector from May 2013. His responsibilities included managing employees charged with maintaining the Dublin to Cork rail line. As part of that work, he was given fuel cards to facilitate re-fuelling of company vehicles and machinery. Other Irish Rail employees also had use of such cards. Irish Rail began a preliminary investigation in late 2016 after it became concerned about the amount of fuel purchased using fuel cards in Mr McKelvey’s division. He was interviewed as part of that investigation and shown spreadsheets relating to purchases made with his fuel card in 2014, 2015 and 2016. He had said some such purchases could have been made using his card without his knowledge and his card may have been taken by another staff member. In March 2017, after he was informed that he was being suspended on basic pay until further notice, the company received letters from his trade union representative and from solicitors challenging the lawfulness of his suspension.

In May 2017, Mr McKelvey was notified that Irish Rail had decided to initiate its formal disciplinary process to inquire into the matter of: “Theft of fuel through the misuse of a company fuel card(s), which has resulted with the company suffering a significant financial loss.” He requested an oral hearing and also asked, having regard to the allegation of “theft”, that he be allowed to be represented by solicitor and counsel at the disciplinary hearing. He also made various complaints about the procedures followed at that hearing. Mr McKelvey applied to the High Court seeking an injunction to restrain Irish Rail from proceeding with the disciplinary hearing, unless the company agreed to legal representation. The High Court granted these injunctions.

In overturning this decision, the Court of Appeal distinguished the Lyons case on the basis that Lyons involved a workplace investigation and this case related to a formal disciplinary inquiry. Further, it is clear from this judgment that the Court had confidence in Irish Rail’s disciplinary procedure. It is likely that if a disciplinary procedure did not comply with best practice, the Court may not make such a definite pronouncement. The Court did not preclude Mr McKelvey from legal representation, by noting that he could renew his request for legal representation at any stage in the course of the disciplinary inquiry.

Brigid Burns v Component Distributors (CD Ireland)

The Labour Court decision in Burns also provides helpful clarification for employers on the scope of the Lyons decision in a redundancy scenario. It should be noted that the Labour Court decision in Burns was published some three weeks before the Court of Appeal decision in McKelvey.

The Labour Court in this case drew a distinction between the case of Lyons and that of Ms Burns, who was made redundant from her job, as credit controller with CD Ireland, in 2016. In Lyons, the employee was “at risk of considerable personal and reputational damage arising from serious alleged internal employment related allegations”. However, the circumstances for Ms Burns were “very different” as she was not in any form of disciplinary process and her good name was not in jeopardy. Ms Burns’ representative before the Labour Court, appealing a WRC adjudicator decision, claimed that her exit from the company was an unfair dismissal because she was denied a right to legal representation during the redundancy process, not given the right to cross-examine members of management, and not given relevant papers on the redundancy discussion.

By way of background, following a proposal to centralise her employer’s finance team to Antrim, Ms Burns’ role was at risk of redundancy. She was consulted about this proposal at several meetings. Ms Burns was informed she could bring a colleague or a trade union representative to these meetings. The company representative told the Court that other employees had used SIPTU representatives in grievance matters before. However, Ms Burns had indicated that she did not need representation and had not requested legal representation during the redundancy consultation process.

Ms Burns’ representative contended that the company “in not giving her the option to be legally represented […] was in breach of her constitutional right to fair procedures”, and used the Lyons judgment in support of this argument. Her representative said Lyons applied to Ms Burns’ claim because “she had a right to earn a living.”

The Labour Court discussed the differences between the Lyons case and Ms Burns’ case, such as the former being a judicial review before the High Court on the principles of natural justice during a disciplinary procedure. The employee’s name in this case “was not in jeopardy”, unlike Mr Lyons, and the complainant was furnished with a reference that was “highly complementary” of her. The Court also referred to the Supreme Court judgment in Burns v Governor of Castlerea Prison (2009), that “legal representation should be the exception rather than the rule.” The Labour Court concluded by finding that the dismissal of Ms Burns was “wholly redundancy connected”; that the redundancy was genuine; that the employer engaged in an extensive consultation process; and that it explored redeployment options, including allowing the employee to make suggestions as to possible alternative roles she might be considered for.

Conclusion

It is highly likely that the Labour Court decision in Burns may not have been at pains to distinguish the Lyons case had the McKelvey decision been delivered. It is interesting that both McKelvey and Burns rely on the Supreme Court decision of Burns v Governor of Castlerea Prison which dates back to 2009.

Burns can be clearly distinguished from Lyons: While both employees in Lyons and Burns faced dismissal, the dismissal in Burns was by reason of redundancy. There was no disciplinary element to this dismissal and no potential reputational damage to the employee.

While McKelvey provides a precedent for the position that there is no routine right to legal representation, it remains to be seen whether the courts will follow this case or revert to the Lyons principles. As the jurisprudence in this area is not settled, a degree of caution is advised as the goal posts may change again.

Further, it will be interesting to observe what the courts deem amount to “exceptional circumstances” – whether complex facts will amount to exceptional circumstances (although the myriad of factual transactions were not deemed sufficiently complex in the McKelvey case). It would seem that the seriousness of the consequences for the party to the process is not the influencing factor that it was in Lyons. It generally follows that should an allegation of theft be upheld then the most likely sanction would be dismissal. Notwithstanding, the Court of Appeal was comfortable to conclude that even if the disciplinary inquiry would lead to dismissal and impact employment prospects and reputation, these factors did not warrant legal representation in what was a “straightforward” case of misconduct.