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Latest in Employment Law>Case Law>Employee A and Employee B v Employer [2012]
Employee A and Employee B v Employer [2012]
Published on: 12/03/2012
Issues Covered: Dismissal Discipline
Article Authors The main content of this article was provided by the following authors.
David Fagan
David Fagan
Background

FACTS

This case involved a transfer of undertaking of the haulage division of Tesco Ireland to a company named Stobart. The employees transferring to Stobart were concerned that certain employee privileges and conditions would be lost to them once they made the move. The Labour Court became involved and recommended that by way of compensation for the loss of their “privilege cards” each employee would receive €5,000 by way of compensation from Tesco Ireland.

As shop stewards for the union within the new company, the claimants found themselves at the forefront of the dispute which arose out of Tesco Ireland’s failure to pay the compensation monies. The situation quickly became out of control and a work stoppage was implemented until the situation was clarified. When no compromise could be reached, Stobart suspended everybody in response to their refusal to perform their work duties. The workers eventually returned to work after an agreement was reached. Following this, Stobart conducted an investigation into the workplace stoppage. The employees questioned were refused legal representation during this investigation. The disciplinary process concluded in the dismissal of the claimants.

DETERMINATION 

In the circumstances, the tribunal found that the claimants were unfairly dismissed under the Unfair Dismissals Acts, 1977 to 2007 and awarded them more than €260,000 in compensation. The tribunal was critical of the respondent company’s disciplinary process which objected to legal representation. The tribunal noted that:

‘The failure to show flexibility in light of the seriousness of the charges is hard to reconcile with a fair process and the potential sanctions faced on the two claimants’. 

LEGAL REVIEW

The core question which arises from this case is whether an employee has a right to be legally represented at a disciplinary hearing? 

There had been a long tradition following on from the case of In re: Haughey in 1971 that persons appearing before a “quasi-judicial” body had an entitlement to legal representation. This had over the years become considered as a right in all cases of misconduct, and where one’s right to one’s good name was at issue. It is only recently that this “right” has been seriously questioned in the courts. 

The Supreme Court first cast doubt on the issue in Alan Garvey v Minister for Justice, Equality and Law Reform and the Governor of Mountjoy Prison and the Attorney General (Notice Party) [2006] ILRM 486 where Geoghegan J. stated that it would seem obvious that there could be no automatic right to legal representation but the requirement of fair procedures may include such a right “in an appropriate case”. In Murphy v College Freight Ltd (UD 867/2007), the EAT opined that to have legal representation in every case would be to over legalise the disciplinary process in the workplace.

In the more recent decision of Burns & anor v The Governor of Castlerea Prison [2009] IESC 33 it was held in the High Court and on appeal to the Supreme Court that the applicants were denied natural and constitutional justice where they were refused legal representation in circumstances where the potential penalties included demotion and dismissal. However, the Supreme Court stated that “legal representation should be the exception rather than the rule”. 

Added to the debate is the different principles adopted by courts and tribunals. The Irish courts are bound by common law principles shaped by their incremental development from underlying principles of justice and fairness. By contrast, tribunals are regulated by a statutory regime and the test provided for in section 6(7) of the Unfair Dismissals Acts 1977-2007 focuses on the reasonableness of the employer and is therefore is a much wider approach than that of the courts. 

This case seems to suggest that legal representation should not be refused in circumstances where gross misconduct occurs and the potential consequences are serious in nature. It is arguable that this may represent the start of a new trend whereby the tribunal adopts a higher standard than the courts in deciding on the reasonableness of the employer.

It will be interesting to see if other EAT decisions follow this reasoning.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 12/03/2012
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