Investigations and Legal Representation - Where do we stand now?

The decision of the High Court in the case of Lyons v Longford Westmeath Education and Training Board^[1] (“Lyons”) rocked the boat in the Employment world back in 2017, where Mr. Justice Eager seemed to suggest that once an employee found themselves involved in a fact-finding investigation with their job on the line, he or she was entitled to legal representation and the right to cross-examination to ensure fair procedures in all disciplinary matters. This decision appeared to represent a deviation from the well-established position of the Workplace Relations’ Commissions’ (“WRC”) Code of Practice on Grievance and Disciplinary Procedures which makes no reference to the right to legal representation or right to cross-examination at the investigation stage. The Lyons decision created understandable confusion for employers in relation to how far they needed to go to ensure fair procedures in disciplinary matters.

Welcome Clarification

October 2018 brought welcome clarity in respect to the extent to which an employee should be afforded legal representation at the investigation / disciplinary stage. On 31st October 2018, the Court of Appeal, in its decision in Iarnród Éireann / Irish Rail v Barry McKelvey[2] (“McKelvey”), confirmed in overturning the decision of the High Court, that save in exceptional circumstances, there was no automatic right to legal representation at the disciplinary stage. In making its finding, the Court cited and relied on the criteria set out in Burns v. Governor of Castlerea Prison[3] (“Burns”), as set out below, and held that such representation should be an exception and not a rule. Ms. Justice Irvine went a step further in her judgment and affirmed Geoghegan J.’s position in Burns that it was “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”[4]. The Court of Appeal referred to the fact that, in its view, Lyons departed to a significant extent from the jurisprudence of Burns and it should be possible for an employee to obtain a fair hearing in accordance with the principles of natural justice without the need for legal representation – save for exceptional circumstances.

The Facts

The Respondent, Mr. Barry McKelvey, had been employed by the Appellant company since 1999. In 2016, the Appellant identified discrepancies in the purchase of fuel within the Respondent’s unit which resulted in a significant financial loss to the company. The Appellant decided to initiate its formal disciplinary process on the grounds of “theft of fuel through misuse of a company fuel card”[5]. The Respondent requested legal representation at the disciplinary hearing, but his request was refused on the basis that the Appellant’s procedures did not provide for such representation and a disciplinary process involving lawyers would make the process more expensive and have adverse effects for the relationship between management and staff. In June 2017 the High Court concluded that the proposed disciplinary inquiry would not be fair unless the Respondent had legal representation and granted an injunction restraining the inquiry until such a time that the Appellant allowed Mr McKelvey such legal representation.

However, the Court of Appeal disagreed with the conclusion that the Respondent would not be afforded a fair hearing unless he had legal representation and applied the six criteria adopted by Ms. Justice Geoghegan in Burns, which were identified in the decision of R v Secretary of State for the Home Department, ex parte Tarrant[6], as being the relevant criteria when considering whether legal representation may be necessary in the interests of fair procedures. These criteria are as follows:

1. The seriousness of the charge and of the potential penalty;
2. Whether any points of law are likely to arise;
3. The capacity of a particular employee to present his own case;
4. Procedural difficulties;
5. The need for reasonable speed in making the adjudication; and
6. The need for fairness as between the parties

In reaching its decision, the Court put weight on the fact that there was nothing in the evidence before it to suggest that the matter to be investigated would be in any way factually complex nor was it likely that any issues of law would arise which could only be fairly dealt with by a lawyer. The investigation in question simply involved the consideration of the Respondent’s day to day use of his fuel card. Ms. Justice Irvine did go on to say, however, that it was “of course possible that some complex issue might in the course of the disciplinary inquiry…..if it did, that would be the time for Mr. McKelvey to ask that the inquiry be postponed to enable him obtain legal representation”. However, the Court held that, as it stood at the time the Respondent requested legal representation, the allegation against the Respondent was in fact a “straightforward” one.

Application of McKelvey by the WRC

Following McKelvey, we have yet to see many decisions handed down by the WRC that have made express reference to the McKelvey decision. However, in both ADJ-00005858: A Worker v Mushroom Farm (8 January 2019) and ADJ-00014984: Care Support Worker v Residential Consulting (18 February 2019) the decision of McKelvey was affirmed and in both cases, it was held that a disciplinary process is not rendered unfair by a refusal to allow legal representation in the conduct of a disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without legal representation.

The uncertainty continues - How should employers conduct workplace investigations following McKelvey?

While the decision of McKelvey has provided some comfort to employers post the unclarity established by Lyons, in that it confirms that there is no automatic right to legal representation, it remains to be seen whether the courts will follow the decision of Ms. Justice Irvine in McKelvey or if they will revert to the position of Lyons. Furthermore, it must be noted that while McKelvey held that there is no automatic right to legal representation, its judgment did not affect an employee’s right to cross-examine witnesses. In fact, Ms. Justice Irvine, relying on Borges v. Fitness to Practice Committee[7], acknowledged the entitlement of a party against whom allegations of misconduct have been made, to confront their accuser by way of cross-examination, concerning those charges. However, Ms. Justice Irvine clearly noted that what was to be considered in such an instance is the entitlement of the party against whom serious charges have been made to cross-examine their accusers rather than by whom such a cross-examination might be conducted.

On 7 December 2018, Mr. Barry McKelvey filed an application for Leave and Notice of Appeal to the Supreme Court which was in turned granted by the Court on 25 February 2019 (Determination). We must now await the decision of the McKelvey appeal.

NOTE: Bláthnaid Evans, alongside leading junior barristers and an experienced WRC Adjudication Officer, will be running a Mock Workplace Adjudication Hearing on 12^th June.

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[1] [2017] IEHC 272

[2] [2018] IECA 346

[3] [2009] 3 I.R.682

[4] [2009] 3 I.R.682

[5] [2018] IECA 346

[6] [1985] 1 Q.B. 251

[7] [2004] 1 I.R. 103