Hear my train a-comin’

Can an employee have a fair disciplinary hearing without a lawyer by his side, and is it constitutional to deny him access to legal representation?

Is it possible to have a fair hearing at employment proceedings without the involvement of lawyers? Is it constitutional to have a hearing without lawyers? These are matters that were recently considered in the Supreme Court case of Barry McKelvey v Irish Rail.

The appellant in this case was appealing a decision of the Court of Appeal, which held that he did not have an entitlement to legal representation in respect of an internal disciplinary process.

The appellant had been working for Irish Rail for a number of years and had been promoted to a managerial position. He had been issued with a fuel card as part of his role to allow refuelling, and it came to light that he appeared to be misusing his fuel card.

The appellant asked whether he could be represented by a solicitor and counsel at an oral hearing.

Irish Rail refused this request and appointed Mr Cullen, an experienced trade-union representative, to represent him instead.

The appellant brought an application before the High Court, seeking an injunction preventing Irish Rail from continuing with the disciplinary process until he was legally represented.

Folsom Prison blues

Ms Justice Murphy in the High Court considered that the applicable case law in this instance was as set out by Geoghegan J in the 2009 case of Burns v Governor of Castlerea Prison. This case related to prison officers who were accused of misconduct.

The prison officers in question refused to participate in a hearing unless they were allowed legal representation. They were not granted legal representation, the hearing proceeded anyway, and sanctions were imposed against them.

They took a judicial review against this decision. Butler J in the High Court noted that the Constitution might require legal representation in exceptional cases, but, in this instance, legal representation was unnecessary.

This was appealed to the Supreme Court, which upheld the decision of the High Court. In reaching his decision, Geoghegan J relied on the findings of Webster J in the 1985 British case R v Secretary of State for the Home Department, ex parte Tarrant.

This interesting case related to a prison mutiny, in which the question of whether a fair hearing would require a lawyer was considered. Webster J set out the following six applicable criteria:

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

Geoghegan J applied the above criteria to reach his decision in Burns, but he ultimately concluded: “I would reiterate that legal representation should be the exception rather than the rule.”

Murphy J considered the above criteria as set out in Tarrant, and later adopted in Burns, when considering the facts of the McKelvey case. Murphy J found that:

• The charge and the consequences were serious,
• Multiple points of law were likely to arise,
• The appellant would not be able to present his own case,
• The procedures to be adopted were unclear,
• The involvement of lawyers would slow down the process, but she felt that the impact of this would be relatively minor, and finally,
• On the question of fairness, she held that, as Irish Rail had chosen to allege theft against the appellant, he was entitled to defend himself.

On the basis of all these considerations, she concluded that Irish Rail incorrectly exercised its discretion in refusing Mr McKelvey’s request for legal representation, and his request for an injunction was grated.

Slow train coming

The High Court judgment was appealed by Irish Rail to the Court of Appeal. Irvine J  agreed with the application of the principles set out in Burns. However, the court reached a completely different conclusion. It was held that the High Court had erred in law in finding for Mr McKelvey.

The Court of Appeal paid particular attention to what they considered to be the core criteria set out by Geoghegan J in Burns: “The cases for which the respondent would be obliged to exercise a discretion in favour of legal representation would be exceptional.”

The court also applied another overarching principle set out in Burns: “It is wholly undesirable that lawyers should become involved in disciplinary proceedings.”

Irvine J stated that Burns “provides clear authority for the proposition that, if the facts to be considered in the course of a disciplinary hearing are relatively straightforward, then a hearing cannot be stated to be unfair or in breach of the principles of natural or constitutional justice by reason only of the fact that the person against whom the misconduct is alleged does not have legal representation.”

In relation to the specific criteria, the judge made several observations. Firstly, in relation to the question of whether the charge was serious, she agreed the potential charges were serious, but found that the High Court had attached undue weight to this.

She also found there was nothing exceptional in the sanctions that Mr McKelvey might be subjected to.

Secondly, the Court of Appeal did not accept that multiple points of law were likely to arise.

Thirdly, the Court of Appeal did not accept that Mr McKelvey would be unable to defend himself, especially as he was going to be represented by an experienced trade-union official.

In Tarrant, some of the prisoners were noted to have intellectual difficulties, and they had no right to any form of representation. Fourthly, the Court of Appeal did not accept that there was a lack of clarity surrounding the process of the disciplinary hearing.

As part of its considerations, the Court of Appeal referred to the 2016 case of Lyons v Longford Westmeath ETB. This case related to an internal investigative process. Eager J departed to a significant extent from the jurisprudence set out in Burns, in that he found “it is quite clear that the proceedings were in breach of article 40(3)(1) of the Constitution of Ireland by refusing to allow legal representatives to appear on behalf of the applicant.”

However, this case related to an investi-gation rather than formal disciplinary proceeding, and the Court of Appeal held that it was the decision in Burns that must guide the court.

Iron horse

Leave to appeal the Court of Appeal’s decision to the Supreme Court was granted because it was held that an issue of general public importance had been raised. The Supreme Court agreed that Burns was the correct law to apply.

The Supreme Court reiterated the overarching finding in Burns that cases requiring legal representation would need to be ‘exceptional’ and, if an organisation has disciplinary procedures, it is ‘wholly undesirable’ to involve lawyers.

The decision for a court to make was whether continuing disciplinary proceedings without legal representation could amount to unfair proceedings. The Supreme Court noted that a case might be better presented by a lawyer, but wondered whether this meant that a lawyer would be needed for the process to be fair.

Clarke CJ took some guidance from the 2009 case of Carmody v Minister for Justice. This case related to the level of representation someone was entitled to, rather than an entitlement to legal representation in the first place, but the Supreme Court felt it could provide useful guidance.

The question in this case was whether Mr Carmody was entitled to counsel as well as a solicitor. It was held that this case was complex, and the prosecution was going to rely on counsel. In these circumstances, it was held that, in order for a fair trial to proceed, Mr Carmody would need counsel.

The Supreme Court held: “It follows that it is necessary to consider whether legal representation is necessary to ensure a fair process, rather than potentially being of some possible advantage to the relevant employee.”

The Supreme Court made the following findings. It found that the case being made against Mr McKelvey was relatively straightforward – that he used or allowed to be used his fuel cards in an improper manner.

It also found that there was nothing in the allegations or likely evidence that would place these disciplinary proceedings beyond the competence of an experienced trade-union official.

The Supreme Court did not accept that there was any real basis for suggesting that legal issues of any substance would arise. The court noted that an adverse finding could result in dismissal, but that this could have no bearing on a potential criminal trial.

Long train running

Clarke CJ noted that if, together with a serious allegation and serious consequences, there were particularly difficult matters of law or extremely complex facts, then the cumulative effect of each of these matters might lead, in an exceptional case, to the view that legal representation was required.

He held that there was nothing to suggest, as happened in Carmody, that the representation being provided was inadequate to secure a fair trial.

Clarke CJ stated: “I am also satisfied that the various considerations in Burns are not matters which need to be separately established, but rather are factors to be taken into account in an overall assessment as to whether a fair process can take place without legal representation. I am also satisfied with the observations to be found in the judgment in Burns, to the effect that legal representation will only be required as a matter of fairness in exceptional cases provides overall guidance to the proper approach.”

Clarke CJ concluded that he was satisfied that the Court of Appeal was correct to allow the appeal from the High Court in this case, and to decline to grant Mr McKelvey an injunction restraining the process.

The outcome of this case very much reinforces the findings in the Burns case, after these principles were somewhat called into question in the Lyons case. Of note though, is that Lyons was a High Court case without the same precedent value as the Supreme Court case of Burns.

In essence, it appears that it will be very difficult for an employee to establish that they are entitled to legal representation unless it is a very complex case, with very serious potential consequences and particularly difficult matters of law. As established in Burns, the situation needs to be ‘exceptional’.