Under the Laws of Natural Justice and Fair Procedures, Disciplinary Policies and Procedures should clearly state that employees have a right to representation, usually a work colleague or a trade union representative, if the company recognises a union, at disciplinary meetings.
Section 4 of the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (SI/146/2004) defines ‘employee representation’ as “a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise”.
However, past determinations from the High Court and Employment Appeals Tribunal have offered conflicting viewpoints on whether or not an employee has the right to legal representation.
Supreme Court Determination
The Supreme Court has issued a determination in the case of Alan Burns and Another –v- The Governor of Castlerea Prison and Another which has given clear guidance to Human Resources practitioners on whether or not a company is obliged to allow an employee to be represented in an internal disciplinary hearing by his/her legal representative.
In this case, Alan Burns and John Hartigan, both Prison Officers at Castlerea Prison, claimed three hours overtime arising out of escorting a prisoner for a medical examination to Merlin Park Hospital in Galway on April 26th, 2002.
On the day in question, the Prison Officers left the prison at 10.25am and did not return until 6.25pm. However, it was claimed by the prison authorities that they should have been back at the prison by 3.30pm. As such, the Prison Officers were requested to attend disciplinary meetings
Although both Prison Officers attended a disciplinary hearing in July 2003, both refused to participate in the hearing without legal representation. The hearing proceeded without their input and the Governor – Daniel Scannell – imposed a disciplinary sanction of a pay reduction through forfeiture of a one-year wage increment and the confinement of the Prison Officers to duties within the prison walls for a year.
Not satisfied that fair procedures had been followed by the prison authorities during the disciplinary process, both Prison Officers took a case against Castlerea Prison.
In their High Court case they successfully argued that they were entitled to legal representation at the internal disciplinary hearing due to the seriousness of the charges against them.
Upon appeal to the Supreme Court by the Governor of Castlerea Prison, the Supreme Court has determined (judgment issued 2nd April 2009) that, in general, there is no right to legal representation at internal disciplinary meetings.
However, the Court have stated that in “exceptional circumstances”, where the presence of a legal representative is required to ensure fairness, that legal right will exist.
When determining if ‘exceptional circumstances’ exist, one should consider:
•The seriousness of the charge and of the potential penalty;
•Whether any points of law are likely to arise;
•The capacity of a particular disciplinee to present his own case;
•The need for reasonable speed in making the adjudication, that being an important consideration;
•The need for fairness as between the parties.
As a result of this judgment, all Company’s are advised to now expressly exclude the general right to legal representation at internal disciplinary hearings in their Contract of Employment and Disciplinary and Dismissal policy except in exceptional circumstances.
Case: Burns & Hartigan v The Governor of Castlerea Prison and The Minister for Justice, Equality and Law Reform, High Court, 132/06, 02/04/2009
Court: High Court / Supreme Court