Right to Legal Representation during a Disciplinary Process

Does an employee have a right to legal representation during a disciplinary process?

No. An employee does not have an automatic right to legal representation during a disciplinary process. However, that right may arise if there are multiple legal issues to be addressed, the facts are complex, there are complicated procedural processed and the employee is unable to adequately present their own defence.

That been said, there is nothing to preclude an employee from privately availing of the services of a solicitor to guide them through an investigation or disciplinary process.

The right to legal representation during the disciplinary process

A case recently came before the Workplace Relations Commission which examines the right of an employee to legal representation during an investigation and disciplinary process. This case involved a civil servant who was dismissed for purchasing and later selling contraband cigarettes from Poland, in Ireland. It was held that the sale of contraband cigarettes was contrary to the Finance Acts and that the employer’s rules were specific as to the standards of behaviour expected from employees in their personal affairs. The employee in question was subject to the civil service code of standards and behaviour as well as a code of ethics which provided that all staff must “act with integrity and honesty and within the law”.

The employer submitted that the sale of contraband cigarettes amounted to serious misconduct as defined in their disciplinary code and was therefore a fair basis for dismissal.

The employee brought about the complaint, in part, on the basis of procedural fairness in that he claimed he was denied access to his solicitor throughout the investigation and disciplinary process. At the outset, the employer argued that, in any event, there was no automatic entitlement to legal representation. The employer contended that their processes and procedures conformed with the Industrial Relations Act, 1990 as well as the code of practice of grievance and disciplinary procedures. It was generally acknowledged that the employee had availed of a solicitor’s assistance throughout the investigation and disciplinary process. However, his chosen solicitor was not available on the day of the appeal. 

Caselaw on the right to legal representation during the disciplinary process

In Burns -v- Governor of Castlerea Prison, the Supreme Court held that there were a number of factors to consider when deciding whether or not legal representation at an investigation and disciplinary process is warranted including the question of whether there will be multiple legal issues, the capacity of an employee to present their own defence, the complexity of the facts to be presented as well as the complexity of the hearing procedure.

The employer contended that the mere fact that the subject matter of the hearing might lead to dismissal (or indeed that there may be parallel criminal proceedings) is not exceptional (larnród Eireann v McKelvey [2018] IECA 346). As quoted above, the Supreme Court has expressly said that the need for a lawyer may not be indicated by the seriousness of the charge where the transaction is a simple one (Burns). The Court said it was 'wholly undesirable' that lawyers be present at disciplinary hearings unless it was clear that the hearing would offend the principles of constitutional justice.

This was recently followed by the Court of Appeal in larnród Eireann v McKelvey [2018] IECA 346 at para 36. In McKelvey the Court said of the principles to be applied on the entitlement to legal representation:

"It is important, I believe, to conduct this exercise mindful of the guidance provided by Geoghegan J. in Burns to the effect that it is wholly undesirable to involve lawyers in workplace investigations unless it be established that there is something exceptional about the matters to be scrutinised such that it would be reasonable to conclude that the proposed hearing could not be a fair one absent legal representation." (ibid, at para 53).

Application of Irish caselaw to the current case

The Adjudication Officer ultimately decided that the decision to dismiss the employee, as a consequence of the investigation and disciplinary process, was not rendered unfair by a refusal to allow an employee legal representation in the conduct of that investigation or disciplinary process. The Workplace Relations Commission held that such a requirement to legal representation could only arise in exceptional circumstances involving issues of significant factual or legal complexity which could not be adequately addressed without the assistance of a lawyer. In this case, the Workplace Relations Commission noted that the employee had availed of trade union representation for a significant proportion of the process and later availed of legal assistance. However, his specific legal representative was not available to attend on the day of the scheduled appeal hearing. 

It had been noted that he had access to other solicitors within the same firm. 

Taking all of this into account, the Workplace Relations Commission held that the employee was not unfairly prejudiced as a consequence of his solicitor not attending the appeal hearing.

Further Information

For further information, please contact the author of this article, Barry Crushell.