In a much anticipated judgment delivered on 11 November 2019, McKelvey v Irish Rail, the Supreme Court brought welcome clarity to the legal position regarding the right of an employee to be accompanied by a legal representative at a disciplinary hearing.

Last year the Court of Appeal found that the circumstances in which an employer would be obliged to exercise a discretion in favour of permitting legal representation should be "exceptional". The case was appealed to the Supreme Court in February 2019. The Supreme Court has now had the final say on the matter and emphasised that this right only arises in exceptional circumstances. This month, Triona Sugrue, Associate within the Employment Team at A&L Goodbody provides practical advice for employers on when to allow an employee to be accompanied by a lawyer at an internal disciplinary hearing.

1. What happened in McKelvey v Irish Rail?

Mr McKelvey, an Inspector with Irish Rail, was suspended with pay to facilitate an investigation into allegations of "theft of fuel through the misuse of a company fuel card". On being notified that Irish Rail was commencing a formal disciplinary inquiry into the matter, Mr McKelvey asked to be represented by a solicitor and Counsel at the disciplinary hearing. When this request was refused by Irish Rail, Mr McKelvey sought injunctive relief to halt the disciplinary process on the basis that he was not being afforded a fair process.

The Irish Rail disciplinary code provided for "the right to representation by a fellow employee or trade union representative" in line with the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).

2. What did the Supreme Court decide?

The ultimate issue was whether refusing to permit an employee to be legally represented in disciplinary proceedings would result in unfair proceedings, such that the process should be halted on this basis.

(i)       The Supreme Court held that a disciplinary process "should only be restrained where it is clear that things have gone sufficiently off the rails such that no decision at the end of the process is likely to be sustainable in law".

(ii)      The Court stressed that the focus should be on the necessity for legal representation and not the fact that permitting representation might potentially be of some advantage to an employee in a disciplinary process.

(iii)     In addition to the serious allegation of theft and the potential for dismissal, had there been particularly difficult issues of law or extremely complex facts, the combined effect of each of these might lead, in an exceptional case, to the view that legal representation was required.

(iv)    In this case, the Court could not see anything in the allegations, the likely evidence, or the process likely to be followed, which would necessitate legal representation.

(v)     This was particularly so given that Mr McKelvey was permitted to be represented in the disciplinary proceedings by an experienced trade union official.

(vi)    The Court did comment that its decision would not necessarily bar Mr McKelvey from asserting at a subsequent stage in the process that he was entitled to legal representation because of the way in which the process had evolved.

The Supreme Court upheld the Court of Appeal's decision to decline to grant Mr. McKelvey an injunction restraining the process from proceeding.

3. What does this mean in practice?

The Supreme Court's findings are welcome from an employer's perspective. They provide a level of comfort to employers in terms of their discretion to permit legal representation.

It is also noteworthy that the Supreme Court regards it as well settled that a court should not restrain a disciplinary process unless something sufficiently serious and incapable of being cured has occurred, such that there is no realistic prospect that a legally sustainable conclusion will be reached at the end of the process.

While the takeaway is that employers enjoy significant discretion in terms of refusing legal representation at a disciplinary hearing, the Supreme Court placed significant emphasis on Mr McKelvey's ability to be represented in the process by an experienced trade union official, which begs the question as to whether it would have been as comfortable in refusing him an injunction if he could only be represented by an inexperienced work colleague.

Employers would be well advised to give due consideration to any request for legal representation from an employee particularly in non-unionised employments. Not only may "exceptional circumstances" entitling such representation exist, but in certain circumstances, such representation may be in the interests of both parties and facilitate the process, depending on the particular facts of the case.

For more information in relation to this topic, please contact Triona Sugrue or any member of the A&L Goodbody Employment team.