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.

It is useful at the outset to consider what the word ‘Representation’ actually means?

In the Oxford English Dictionary the word Representation 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”. This will be further considered below. 

In O’Sullivan v Law Society of Ireland [2009] IEHC 632 where 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), hereinafter the “Code of Practice”.] In Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 (hereinafter referred to as ‘Lyons’} In this case, Mr Lyons, a deputy school principal, found himself involved in a fact-finding investigation considering a number of bullying allegations against him by an employee.  The outcome of the investigation made a number of findings against the employee. The employer’s Bullying Prevention Policy prevented employees from availing of legal representation during the disciplinary process and didn’t afford them a right to cross-examine their accusers. In the High Court Eager J held that: 

“where investigative processes can lead to dismissal, cross-examination is a vital safeguard to ensure fair procedure’ and that the employer here ‘failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing … it is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence”

The court set aside the Disciplinary Finding as it reached  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 then the full array of fair procedures and natural justice would be necessary, thus giving rise to the entitlement to legal representation and to cross examine witnesses”. 

In Burns -v- Governor of Castlerea Prison [2009] IESC 33 (hereinafter referred to as “Burns“) 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. 

As stated above, the Supreme Court has expressly stated 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 i36. In McKelvey the Court held that the principles to be applied on the entitlement to legal representation as follows:

“It is important, I believe, to conduct this exercise mindful of the guidance provided by Geoghegan 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.”  

In McKelvey the Supreme Court held that an employee is only entitled to legal representation in internal disciplinary processes in “exceptional circumstances”. The Supreme Court provided a  framework for determining what might constitute such exceptional circumstances and whether legal representation is warranted in a particular case.

The Supreme Court held that an overall assessment of the matter is to be carried out, [presumably by the Employer?] taking into account the following factors: –

1. i) The seriousness of the charge and the potential penalty.
   ii) Whether any points of law are likely to arise.
   iii) The capacity of a particular person to present their own case.
   iv) Procedural difficulty.
   v) The need for reasonable speed in making the adjudication.
   vi) The need for fairness as between employees but also as between the employee and the employer.

Unless this standard is satisfied, the refusal to permit legal representations during such procedures does not render the process unfair and/or infringe on the employee’s right to fair procedures and natural justice as provided for under: “S.I. Number 146/2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 which provides for: 

“…the right to representation during disciplinary procedures, a representative is defined as ‘a colleague of the employee’s choice and SI 146/2000 a registered trade union but not any other person or body unconnected with the enterprise”. 

However, it seems the Supreme Courts determination in McKelvey  has further limited the possibility of an employee’s right to legal representation, in what seems to be an attempt to prevent a workplace investigation from turning into a courtroom, reverting to the previous standard held in Burns. In Burns the Supreme Court confirmed that generally there is no legal right to representation at internal disciplinary procedures hearings. It was held, akin to the decision in McKelvey, that in exceptional circumstances that a right to legal representation may exist, but this would only ‘be required by the principles of constitutional justice’. In other words, the right to legal representation should be the exception and not the rule.  Geoghegan J stated that it was ‘wholly undesirable to involve lawyers in workplace investigations unless it be established that there is something exceptional about the matters scrutinised such that it would be reasonable to conclude that the proposed hearing could not be a fair one absent legal representation’.

In McKelvey, the appellant was employed as an Irish Rail Inspector. He became the subject of an investigation surrounding the alleged misuse of his company fuel card allowance. The  Supreme Court reaffirmed the Court of Appeal decision, agreeing with the finding in Burns, that save in exceptional circumstances there was no automatic right to legal representation at disciplinary stage. 

In determining what [Exceptional] circumstances the court considered the fact that the charges may constitute a criminal offence to be ‘of some marginal relevance but…of limited weight…and that an internal disciplinary process such as this is not a criminal trial’.

The Court went on to state that if there was something in the evidence before it to suggest that the matter to be investigated was ‘particularly difficult issues of law or extremely complex facts’, the cumulative effect may be, in ‘an exceptional case’, that legal representation is required.

Clarke CJ further stated that when it comes to intervening during a workplace disciplinary process [particularly that of injunctive relief], that courts should be slow to exercise their ability to interfere save in circumstances where the entire process has ‘gone off the rails’ to such an extent that there was no reasonable prospect that the final decision could be justified in law.

In the same case Charleton J stated that (in considering legal representation) ‘the place to start, and often to end, is the contract of employment’.

Right to Legal Representation during Redundancy Process

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

Reverting to the definition of “Representation” in many cases the person accompanying the employee will have a meaningless involvement and will frequently be told that s/he will be there only as a witness and not allowed to make representations. 

Sometimes the accompanying employee will be asked at the conclusion of such a meeting if the employee got a fair hearing? In this scenario the witness may not be sufficiently qualified to offer any opinion on whether the employee got a fair hearing. Furthermore, it is unreasonable to ask an employee this question as s/he may have to consider his/her own future in the company. This is reality. In these circumstances whatever the accompanying employee is doing, is not representation as defined in the Oxford English Dictionary.

The other issue touched on above is who decides if there are ‘exceptional circumstances’ and when? It is hard to envisage an employer adjourning a hearing so that the employee can arrange for legal representation. At the same time the Employer may have continuous advice from his solicitor or representative employers’ organisation.  Hardly a level playing field!

Furthermore, as is their entitlement, the Employer may not recognise the employee’s Trade Union, so in effect the employee may have no representation. 

Finally, the decision on having legal representation will be decided by the courts long after the Disciplinary Proceedings have concluded and most probably after the employee has been dismissed.

Conclusion/Take Away Note:

An employee may only be entitled to legal representation in disciplinary proceedings, if there are ‘exceptional circumstances’ as set out in the jurisprudence above. 

Disciplinary hearings and grievance procedure compliance is essential for employers and managers within employment law. It is important to ensure that the necessary procedures that is place, and that it has been issued to and signed off by all employees, in order to guarantee that you can correctly manage disciplinary issues in the workplace.

Current employment law legislation provides that all employees should have received and signed off on the company disciplinary and grievance procedure within 28 days of commencement of employment.

Having a formal procedure in place will remove any ambiguity or accusations of unfair treatment as, when correctly applied, a disciplinary and grievance procedure allows for all employees to receive the same treatment if a disciplinary issue arises.

Fair Procedures

Section 6 (7) of the Unfair Dismissal Act states that in determining whether the dismissal is fair or unfair it has regard to:

(A) The reasonableness or otherwise of the conduct of the employer in relation to the dismissal, and

(B) the extent, if any, of the compliance or failure in comply with the employer in relation to the employee to the disciplinary procedures or the provisions of the Code of Practice on Disciplinary and Grievance Procedures (Industrial Relations Act 1990) (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.

As the employers own disciplinary procedures may be more extensive than the procedures in the Code of Practice, it will be looked to first.

The Rules of Natural Justice for Disciplinary Hearings

Employers who commence disciplinary proceedings against their employees must follow the rules of natural justice. The employee must:

• Be made fully aware of any formal allegation made against them
• Be afforded the opportunity to reply to any formal allegation made against them
• Be afforded the right to representation throughout the disciplinary process
• Receive the right to a full and objective investigation of the allegation
• Receive the right of appeal

Fair Procedures in Disciplinary Hearings Legal Case

Recently, the Employment Appeals Tribunal criticised Dunnes Stores for disregarding the rules of natural justice in the manner they conducted their disciplinary process as they did not provide a checkout operator with an appeal hearing despite her request for one, awarding her €26,000 for being unfairly dismissed. This highlights the importance of adhering to the rules of natural justice.

In another recent case an employee was awarded €1,500 for the unfair dismissal, and a further €2,663 in lieu of four weeks’ minimum notice.

The Tribunal found that the investigative and disciplinary processes in the case “were fundamentally flawed to the extent that the Tribunal considers and holds the claimant to have been unfairly dismissed.” The exclusion of the employee’s union representative and the denial to him of his representative of choice during the process was unfair and a fundamental breach of his contractual entitlements. The Tribunal could not disregard these fundamental flaws, particularly as the firm had the advice of an external consultant in employment procedures available to it.

The recent case of Castolin Eutectic Ireland Limited V Kita [2018] involved an allegation from the complainant that they had been unfairly dismissed following a workplace dispute. During the incident the complainant requested to speak with the operations manager and told another supervisor within the company that they did not trust their supervisor. Following this incident the complainant had taken a number of day’s sick leave. Upon their return to work the complainant was questioned by their manager regarding the incident and they were handed a letter requesting their attendance at an investigation the next day. The complainant was not provided with a copy of the complaint lodged against them and they were denied access to witnesses and notes of the investigation meeting. This was not disputed by the respondent, however, they argued that the complainant’s conduct had amounted to a gross insubordination and thus justified the complainant’s dismissal. The dismissal was upheld by the WRC who held that a gross insubordination had been found.

The Labour Court reversed the decision of the WRC on appeal. The Labour Court held that while the complainant had not followed reasonable instruction, their conduct did not amount to gross insubordination and that the lack of procedural fairness afforded to them further contributed to their dismissal being unfair. No public remedy or re-reengagement was issued in this case; rather the complainant was awarded €10,000 in compensation. This case illustrates the importance of consistency in the treatment of employees pertaining to disciplinary matters and dismissals.

 

Grievances During the Disciplinary Process

Often, during the course of an investigation or disciplinary process, an employee raises a grievance either in relation to the process itself or in relation to some other related or unrelated matter. In this scenario, the first step is for employers to look to their grievance and disciplinary procedure for guidance regarding the policy and custom and practice approach to this issue.

While the UK Code of Practice does not bind Irish employers, in the absence of any Irish legislative or case law guidance on the subject, t is helpful to look at the UK position for some guidance on best practice. The ACAS Code of Practice 2009 provides some guidance on what to do in a similar situation in Ireland. Section 46 states:

“Overlapping grievance and disciplinary cases…where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently”.

It is clear that there is no legal requirement to suspend a disciplinary process if a grievance has been raised.

However, where the grievance relates to the process of the disciplinary procedure, it could threaten the integrity of the disciplinary procedure. The employer should consider whether the disciplinary procedure should be suspended for a short period of time while the grievance is considered.

The 2009 ACAS Guide suggests that a grievance raised in respect of fair procedures may require an employer to consider suspending the disciplinary process where: