The First Thing We Do,Let’s Kill All the Lawyers…Workplace Discipline and Legal Representation

Introduction

The ‘legalisation’ of workplace disputes has been a topic that has attracted much attention over the past years. 1 The phenomenon has been very visible in the ‘voluntarist’ systems of the UK and Ireland, where the ‘classic’ model favoured joint trade union and employer regulation of employment relations, and the relative absence of legal intervention. ² In Ireland, as elsewhere, the legalisation of employment disputes takes various forms. First, and partly as a consequence of EU membership, there has been a huge expansion in individual employment rights protection (between 1990 and 2010, 28 major labour law Acts were passed in Ireland, dwarfing the number of Acts passed in previous decades). ³ Secondly, declining trade union density and weak legal protections for collective bargaining in Ireland have led to workplace disputes becoming more and more individualised, with aggrieved workers either navigating the employment tribunal system alone or, frequently, turning to legal (rather than trade union) representation. ⁴ However, thirdly, and the focus of this note, is the increasing appeal to legal representation, not just in employment tribunals, but in the workplace itself, and in the context of workplace disciplinary procedures. A recent decision of the Irish Supreme Court, McKelvey v Iarnród Éireann/ Irish Rail, ⁵ addressed this issue.

A train wreck? McKelvey: the facts

Mr. McKelvey worked for Iarnród Éireann, the public company that operates the Irish national rail service. He was initially subject to an investigation concerning the potential misuse of a company fuel purchase card, subsequently suspended (with pay), and the company then proposed to commence disciplinary proceedings alleging, in essence, that Mr. McKelvey had been engaging in the theft of fuel. 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 the company.

The company argued that no provision for legal representation was set out in the Grievance and Disciplinary Policies and Procedures of Iarnród Éireann; rather, these provide the employee with the right to representation by a fellow employee or trade union representative. Mr. McKelvey issued High Court proceedings to prevent the disciplinary hearing being undertaken without the presence of legal representation, and the High Court ruled in his favour in July 2017. Iarnród Éireann appealed to the Court of Appeal which overturned the High Court decision, and Mr. McKelvey, in turn, appealed to the Supreme Court.

3. Collision avoided? McKelvey: the decision

The leading judgment in the Supreme Court was given by Chief Justice Clarke. Clarke CJ affirmed that the law concerning the entitlement to have legal representation in a workplace disciplinary process, such as the one to which Mr. McKelvey was subject, had been set out by the Supreme Court in Burns v. Governor of Castlerea Prison. ⁶ In Burns (where a prison officer was the subject of a disciplinary process), the Supreme Court had set out a series of factors which should serve as ‘starting off points’ from which to approach a request for legal representation in a workplace process:

The seriousness of the charge and of the potential penalty;

The Court was clear in stating that, while these criteria are a useful starting point from which to approach the issue, the core question to be answered is whether a disciplinary hearing could be said to be unfair or in breach of the principles of natural and constitutional justice by reason of the fact that the employee does not have legal representation. Clarke CJ explicitly approved the proposition in Burns that ‘[t]he cases for which the respondent would be obliged to exercise a discretion in favour of permitting legal representation would be exceptional’. ⁷ Clarke CJ also emphasised that merely because a case may be better presented with the forensic skills of an experienced lawyer, does not mean that presence of a lawyer is required for a fair process.

Clarke CJ also addressed the question of when it is appropriate for courts to intervene in workplace processes; the appropriateness of a court intervening either before or during (as opposed to at the end of) a disciplinary process. Here, he referred to the judgment of the Supreme Court in Rowland v. An Post, ⁸ where the basic principle set out was that courts should be reluctant to intervene while a disciplinary process is ongoing, but, rather, should wait until the process has come to an end, and then decide whether the result of that process is sustainable in law. Clarke CJ noted, however, that the judgment in Rowland also recognised that there may be cases where court intervention at an earlier point is necessary; where it is clear that the process has ‘gone off the rails’ to such an extent that there could be no reasonable prospect that any ultimate determination could be sustainable in law. ⁹

Ultimately, the Supreme Court concluded that there were no exceptional circumstances necessitating legal representation for Mr. McKelvey. This was especially so as the disciplinary proceedings had not yet commenced at the time legal proceedings were initiated. However, the Court was clear that this did not necessarily bar Mr. McKelvey from asserting an entitlement to legal representation at a later stage due to the manner in which the disciplinary proceedings had evolved.

4. Signal failure? Conclusion and implications

The case raises a number of issues, and questions, of general interest to labour lawyers.

First, the issue of the seriousness of the potential penalty. While the outcome of the disciplinary inquiry could lead to Mr. McKelvey’s dismissal (and have a subsequent impact on his future employment prospects and his reputation), the Court placed little weight on the fact that the misconduct alleged (theft) was also a criminal offence, as the results of any workplace process would have no bearing on any subsequent criminal trial.

Secondly, the Court made reference, in some detail, to the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000. ¹⁰ Codes of Practice have a slightly unusual status in Irish law in that, while they are admissible in evidence and must be ‘taken into account’ by courts and tribunals, failure to comply with a Code of Practice does not, in itself, ground an action against any party. ¹¹ Nonetheless, both the Supreme Court and the Court of Appeal in McKelvey emphasised that the Code of Practice (on which the company’s process in the case had been based) is silent on the question on legal representation. According to Ms Justice Irvine in the Court of Appeal, this is

perhaps indicative of the view that it should be possible for organisations to carry out inquiries into alleged misconduct on the part of employees on an “in house” basis without the need to involve lawyers. As is observed in many of the authorities, once lawyers become involved, the process is ultimately slowed, becomes more expensive and oftentimes will fracture and irreparably damage relations between employer and employee. ¹²

A final key issue to highlight is the question of contract. Clarke CJ, in his judgment, felt that the specifics of the case did not require him to address whether it may be possible to exclude by contract any entitlement to legal representation in a private law employment dispute. However, the other judgment given, by Charleton J, focused heavily on the contractual relationship between the parties. While coming to the same finding as the Chief Justice, Charleton J noted that ‘the place to start, and often to end, is the contract of employment’ (at para 10). He concluded that Mr. McKelvey was entitled by contract to have a fellow employee assist him at the disciplinary hearing, or to be represented by a trade union official; ‘by contract, no other or outside individual may represent him’. ¹³ The question, therefore, remains open as to whether a contract could be appropriately drafted, in a situation such as this, so as to exclude a right of legal representation in all circumstances in a disciplinary process. In the author’s view, this would be an undesirable result from a normative standpoint, as it would promote a ‘privatisation’ of rights in employment law, particularly impacting vulnerable employees, and would undoubtedly lead to challenges both under the Irish Constitution, but also under Article 6 of the European Convention on Human Rights.