Alan Burns & Another v Governor of Castlerea Prison & Another
Case Reference IESC 33
Legal BodyIrish Supreme Court (IESC)
Type of Claim / JurisdictionDisciplinary and Grievance Issues, Policies and Procedures
This article reviews the importance of the Alan Burns and Another v The Governor of Castlerea Prison and Another case when it comes to guidance on the advisability of lawyers at internal workplace hearings.
Update: Paul Joyce has written a detailed review of the 2017 High Court case of Lyons v Longford Westmeath Education and Training Board  IEHC 272, which has updated the position regarding the right to be legally represented at hearings.
In the High Court case of Stoskus v Goode Concrete Limited High Court, 2007, the court found that it may be possible contractually to agree not to have legal representation in an internal disciplinary hearing. The Employment Appeals Tribunal case of Murphy v College Freight Limited the Tribunal decided that there did not exist a right to be legally represented during an internal disciplinary process.
There had been a long tradition following on from the case of In re: Haughey in 1971 that persons appearing before a “quasi-judicial” body had an entitlement to legal representation. This had over the years become considered as a right in all cases of misconduct, and where one’s right to one’s good name was at issue. It is only recently that this “right” has been seriously questioned in the courts.
The Supreme Court has now entered into this debate in the case of Alan Burns and Another v The Governor of Castlerea Prison and Another. In a decision delivered, 2 April 2009, the Supreme Court has made the following findings:
1. That the absence of reference to legal representation in the Rules of the Prison Service did not necessarily preclude a right to legal representation.
2. That even if legal representation were expressly excluded, that the Constitution might require legal representation in “exceptional cases” irrespective of the wording of any rule, code or contract.
3. That the issue as to whether legal representation is required essentially boils down to a consideration of whether legal representation is desirable in the interest of a fair hearing. The Supreme Court approved six factors to be considered in deciding whether a fair hearing would require a lawyer.
(a) The seriousness of the charge and of the potential penalty.
(b) Whether any points of law are likely to arise.
(c) The capacity of a particular disciplinee to present his own case.
(d) Procedural difficulties
(e) The need for reasonable speed in making the adjudication, that being an important consideration
(f) The need for fairness as between the parties.
In summary it now appears that the position on legal representation in internal disciplinary hearings is that:-
1. There is no general right to legal representation.
2. In “exceptional circumstances”, where the presence of a lawyer will be required in order to ensure fairness, that legal right will exist.
3. In considering whether “exceptional circumstances” exist, the 6 factors approved by the Supreme Court are of assistance.
4. Employers should now exclude the right to legal representation in their contracts and handbooks to maximise their ability to exclude a lawyer.
This new position will be widely welcomed by employers seeking to exclude lawyers from their internal processes.
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