The Supreme Court ruled in November 2019 that employees have no automatic right to bring legal representatives to internal workplace disciplinary procedures.

The case of McKelvey v Irish Rail, the court ruled that an employee would need to establish that they have an ‘exceptional’ case that requires the involvement of lawyers.

Mr McKelvey was an employee of Iarnród Éireann and was the subject of an investigation in 2016/2017 relating to an allegation of misusing a company card provided to him to purchase fuel for vehicles and machinery. Mr McKelvey was suspended on basic pay until further notice upon the conclusion of the investigation in March 2017. Two other employees were also suspended.

Iarnród Éireann commenced disciplinary proceedings against Mr McKelvey and the two employees. Mr McKelvey subsequently sought legal representation at these proceedings based on the complexity of the allegations and the lack of information provided to him. This request was refused by Iarnród Éireann on the ground that legal representation is not provided for in the company’s disciplinary policy (the Code). An employee could only be accompanied by a colleague or a trade union representative.

It was accepted by the parties that the Code complied with the statutory Code of Practice on Grievance and Disciplinary Procedures.

The decision focused on the fact that the employee, Mr McKelvey, enjoyed the benefit of being represented by an “experienced trade union official.” If an employee in a non-unionised employer requests legal representation for an internal procedure, the facts of the case should be carefully considered before deciding on whether to involve legal representatives.

The supreme Court refers to section 14 Unfair Dismissals Act 1977 which states

14.—(1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.

Employers are not held to the same high standard as a Court, and therefore, should rely upon fair procedures, the guide for best practices is to have policies and procedures or refer to SI 146 of the Industrial Relations Act 2000.