Representation

An employee does not have an automatic right to legal representation during a disciplinary process. However, that right may arise if there are many complex legal issues to consider, and where because of this, the employee is unable to adequately present their own defence.

What is Representation?

It is useful at the outset to consider what the word ‘Representation’ actually means. In the Oxford English Dictionary the word is defined as:

“The act or action of representing: the state of being represented: such as: the action or fact of one person standing for another so as to have the rights and obligations of the person represented.”

Key Case Law

In O’Sullivan v Law Society of Ireland [2009] IEHC 632, Justice McDermott held:

‘In the courts view it was not necessary for the first named respondent to afford the applicant the full panoply of natural justice rights in the course of any investigation into his conduct… they were of course obliged to treat him fairly but they were entitled to adopt less formal and more abridged procedures…the full panoply of natural justice rights does not inexorably apply at every phase of an investigative process. An appropriate standard of fair procedures must be applied at all stages of a tiered process. There may be situations in which a stronger degree of procedural protection may be required having regard to the decision to be taken at an investigative stage or its potential consequences.’

There is no automatic right to legal representation in either statute or the WRC Code of Practice on Grievance and Disciplinary procedures [S.I. 146/2000].

In Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272, Mr Lyons, a deputy school principal, was involved in a fact-finding investigation into bullying allegations. The High Court held that cross-examination is a vital safeguard to ensure fair procedure. The court set aside the disciplinary finding as it violated the employee’s constitutional right to fair procedures.

In EG v The Society of Actuaries in Ireland [2017] IEHC 392, the High Court held that where there is potential for serious adverse findings against an employee, full fair procedures may give rise to entitlement to legal representation and to cross-examine witnesses.

In Burns v Governor of Castlerea Prison [2009] IESC 33, the Supreme Court outlined factors to consider when deciding if legal representation is warranted, including:

1. Whether there will be multiple legal issues
2. The capacity of an employee to present their own defence
3. The complexity of the facts to be presented
4. The complexity of the hearing procedure
5. Seriousness of the charge (may not alone indicate a need for legal representation)

The Supreme Court has stated that lawyers should generally not be present at disciplinary hearings unless the process is complex enough to offend constitutional justice principles.

This was reaffirmed in Iarnród Éireann v McKelvey [2018] IECA 346, where the Court held that legal representation is only warranted in “exceptional circumstances”. The Court also provided factors to determine whether legal representation may be required:

1. The seriousness of the charge and potential penalty
2. Whether points of law are likely to arise
3. The capacity of the employee to present their own case
4. Procedural difficulty
5. The need for reasonable speed in making the adjudication
6. The need for fairness between employees and between the employee and the employer

Right to Legal Representation during Redundancy Process

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

Practical Considerations

In practice, the person accompanying the employee often has a limited role and may only act as a witness. Asking the accompanying employee to judge whether the employee had a fair hearing is unreasonable.

Employers may have continuous legal advice, and the employee may not have trade union recognition or legal representation, creating an imbalance. Decisions about legal representation are typically made by courts long after disciplinary proceedings have concluded.

Conclusion / Takeaway

An employee may only be entitled to legal representation in disciplinary proceedings if there are “exceptional circumstances” as defined by the jurisprudence above. Generally, there is no automatic right to legal representation.