Disciplinary hearings – A place for lawyers?

Patrice O’Keeffe advises...

Your employee wants to have his/her solicitor present at an internal disciplinary hearing - should you allow this or not? A clear distinction has been drawn in Irish case law between the right to representation and the right to legal representation at disciplinary hearings.

Recent Supreme Court developments

A recent Irish Supreme Court decision has now determined that there is no blanket entitlement to legal representation in disciplinary hearings.
The case, Alan Burns & John Hartigan V Governor of Castlerea & The Minister for Justice, Equality and Law Reform (ibid) involved two prison officers who had allegedly improperly claimed for three hours overtime by excessively delaying the return of a prisoner after a hospital visit. The prison officers were successful in the High Court where the judge quashed a penalty determination of the Governor of Castlerea Prison on the basis that the charges were sufficiently serious to warrant legal representation. The Governor had denied the two prison officers a right to legal representation based on the Disciplinary Code for Officers.

The Prison Governor and the State appealed the High Court decision to the Supreme Court and Mr. Justice Geoghegan allowed the appeal, setting aside the decision of the High Court. Interestingly, the judge found that “it is wholly undesirable to involve legal representation unless in all the circumstances it would be required by the principles of constitutional justice”.

The Supreme Court stressed that, unless otherwise provided for in a contract of employment, legal representation at a disciplinary hearing should be the “exception rather than the rule” and adopted a list of six items which should be the “starting off point” when considering whether a fair hearing would require a lawyer:

• The seriousness of the charge and of the potential penalty;
• Whether any points of law are likely to arise;
• The capacity of a particular employee to present his own case;
• Procedural difficulty;
• The need for reasonable speed in making the adjudication, that being an important consideration;
• The need for fairness as between the parties.

Employment Appeals Tribunal

The Employment Appeals Tribunal has always put a very strong emphasis on an employee’s right to be represented during internal grievance or disciplinary processes. Its Code of Practice sets out the process employers should follow. The Code stipulates that an employee should be given the opportunity to avail of the right to be represented by an employee representative during the procedure. An employee representative is defined as ‘a colleague of the employee’s choice or a registered trade union representative but not any other person or body unconnected with the enterprise’. The right to representation in the code does not extend to a right to legal representation.

An employer should commence all disciplinary proceedings by:

• advising the employee of the seriousness of the matter


• advising the employee of their right to be represented

UK decision

A recent UK decision, Kulkarni V Milton Keynes Hospital [2009] EWCA Civ 789 points to what the Irish courts might deem exceptional. In this case, the UK courts found that where an NHS doctor faced charges which were of such gravity that, if proved, the doctor would effectively be barred from employment in the NHS, a right to legal representation would be implied because the doctor was facing what in effect was a criminal charge. In that case the doctor was accused by a patient of inappropriate examination.

Conclusion

The Irish Supreme Court decision in the Alan Burns case is a significant development in the area of employee representation and has been generally welcomed by employers. If an employee seeks to be legally represented at an internal hearing, an employer should still exercise a great degree of caution, as the factors to be considered when deciding whether exceptional circumstances exist, are primarily subjective. In addition, if an employer refuses to allow a lawyer into the process, it will provide a mechanism for an employee to challenge the fairness of the process.

Further Information

This note is for general guidance only and is not to be relied upon as legal advice which may need to be tailored for any given situation.

For further information on this subject please contact a member of our Employment Law Department on employment@ckt.ie or 021 4626900

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