Supreme Court Decision: No entitlement to Legal Representative at Disciplinary Hearing
On Monday 11th November 2019, the Supreme Court handed down its decision in Barry McKelvey v Iarnrod Eireann with Chief Justice Frank Clarke finding that Mr. McKelvey had no entitlement to be legally represented at a Disciplinary hearing with his employer. The right to representation with regard to internal employment procedures often raises issues for employers and employees alike. This right is governed by fair procedures and in certain circumstances, could be advantageous to both employer and employee should the disciplinary hearing develop into something more litigious.
The Supreme Court did note that certain cases may require legal representation at the disciplinary stages but stressed that it would be “only required as a matter of fairness in exceptional cases.”
On the basis of the facts before the court, they found that the employee had no entitlement to be legally represented at the disciplinary hearing, he was sufficiently represented by his Trade Union Representative and the lack of legal representation did not constitute unfair procedure.
Whilst this has clarified the position of an employees’ entitlement to legal representation, employers should assess each case on a case by case basis and ensure that they consider whether exceptional circumstances apply to give rise for legal representation in a particular case.