A very important decision came before the courts recently regarding the question of whether an employee, who is the subject of a disciplinary process, is entitled to legal representation at an internal hearing conducted by the employer or not. 

Recently in the case of McKelvey v Irish Rail the Supreme Court brought clarity to the issue over whether an employee is or is not entitled to legal representation at a disciplinary hearing.  

In this case in the High Court it was stated that: 

“It is ordered that the Defendant be restrained from commencing with the disciplinary hearing in respect of the said Plaintiff unless his entitlement to be legally represented is granted”.  The Defendant was the employer.

The High Court decision was then appealed to the Court of Appeal. 

The employee then sought leave to appeal to the Supreme Court which was granted.  

The Supreme Court has now concluded that representation for the employee of an experienced trade union official would have been sufficient to meet the needs of a fair process. 

The Judge stated: 

‘’I am also satisfied that the observation 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’’.  

Therefore, the right to have legal representation at disciplinary meetings only arises in exceptional cases.  

Cleary & Co. Solicitors, Litigation Law Firm 

Kieran Cleary and Roger Cleary Employment Law Solicitors can help with questions you may have regarding employment law matters and our numbers are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com

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