We get this call a lot. An employer invites an employee to a disciplinary hearing and is informed, either verbally or by way of written communication, that the employee wants to have their solicitor attend. The question is: does the employer have to allow this?
Historically, we would have advised that only if the disciplinary could result in the employee’s dismissal should legal representation be permitted. This was based on on the 2009 High Court case of Burns v Governor of Castlerea Prison. Essentially, in that case the Judge noted that the Constitution allowed for legal representation in exceptional cases, but that in the case before it legal representation was unnecessary. The case was appealed to the Supreme Court where the Judge reiterated the decision in the High Court stating: “I would reiterate that legal representation should be the exception rather than the rule.”
It would seem that this is still the position given the recent Supreme Court case of Barry McKelvey v Irish Rail. Here, Mr. McKelvey brought an application before the High Court, seeking an injunction preventing Irish Rail from continuing with the disciplinary process until he was legally represented. Much turned on the premise that the Burns case provided: “… clear authority for the proposition that, if the facts to be considered in the course of a disciplinary hearing are relatively straightforward, then a hearing cannot be stated to be unfair or in breach of the principles of natural or constitutional justice by reason only of the fact the person against whom the misconduct is alleged does not have legal representation.” The Supreme Court found again that cases requiring legal representation would need to be ‘exceptional’ and, if an organisation has disciplinary procedures, it is ‘wholly undesirable’ to involve lawyers. Mr. McKelvey was declined an injunction restraining the process.
From a HR perspective, however, it might be worth considering why the employee feels they need legal representation. Is there a reason for them to believe that they will not be treated fairly? Have you provided them with enough information to clearly set out why you feel a disciplinary hearing is required? It can sometimes happen that an employee simply has a knee-jerk reaction and seeks legal advice and there is nothing the employer has done wrong that would justify the reaction. That said, disciplinaries should be the exception and not the rule in any organisation and it is worthwhile remembering that they take a huge toll on the employee. Take the time to sit back and really consider what is going on in these situations. It might be worth taking the time to have HR speak with the employee and explain things in a supportive manner rather than allow the emotions to build up and quite possibly damage a good working relationship over what could turn out to be verbal warning.
If ESA can assist you with any HR matters please don’t hesitate to contact us on 01 8774608 or [email protected]
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