Background:

The Applicant, a prison officer, was the subject of an investigation and disciplinary proceeding. The wife of a prisoner which the Applicant supervised and another prisoner alleged the Applicant had been engaged in inappropriate behaviour, such as smuggling contraband into the prison and violently abusing prisoners. The first complainant also alleged the Applicant was harassing her via text message.

These allegations were initially the subject of an internal investigation and a reference to An Garda Síochána, but after the complainants refused to cooperate further with any investigation, the criminal investigation did not proceed, and many of the most serious allegations of smuggling and alleged violence against prisoners also could not be substantiated. The only matters which were left to investigate were whether the Applicant made a threat to kill or injure a prisoner and whether he had inappropriate contact with the first complainant, the wife of a prisoner.

The Applicant requested legal representation by his solicitor in his employment disciplinary hearing, but the Respondents, his employer, refused this request and only permitted him to bring a colleague or a union representative. The Applicant applied to the High Court for an order to permit him to bring legal representation to his disciplinary hearing.

Outcome:

Mr Justice Barr, in the High Court, found that the matters arising did not require an in-depth grasp of either legal or factual complexities. As a result, they did not meet the requirements of Burns and Hartigan v Governor of Castlerea Prison [2009] 3 IR 682 and McKelvey v Irish Rail [2020] 1 IR 573 which would compel an employer to allow an employee legal representation in an internal investigation or disciplinary process. Barr J found legal representation was only required in circumstances where a fair process could not ensue without legal representation, or, in an obiter comment, where there is an ongoing criminal investigation or prosecution ongoing pertaining to the same matter as the internal employer process.

Practical Guidance for Employers:

It is always advisable to allow an employee to bring along a fellow colleague or union representative into an investigation interview or disciplinary hearing to ensure the process meets the standard set out in the WRC Code of Practice on Disciplinary Procedures. However, an employment investigation or disciplinary procedure does not usually need to meet the same standard of procedural rigour as a criminal investigation or trial, and an employee is only entitled to legal representation in the most serious or complex allegations. It is not sufficient for an employee to defend themselves using the “Bart Simpson defence” of saying “You can’t prove anything” – in an employment context an employee has an obligation to be proactive in putting forward an answer to an allegation.

The full decision is here:
https://www.courts.ie/acc/alfresco/2ffa7308-a20a-4081-bba5-3b2fe6b840ad/2023_IEHC_262.pdf/pdf#view=fitH