Categories: General
      Date: Apr  8, 2009
     Title: Legal Representation at Disciplinary Hearings
A recent decision by the Supreme Court has upheld that an automatic right to be legally represented does not apply during an internal disciplinary process.


Since the introduction of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000). Employers have maintained that in all disciplinary proceedings employees could only be represented by a fellow employee or union representative. This has been challenged unsuccessfully in bothe the Employment Appeals Tribunal (EAT) and the High Court, the latest appeal to the Supreme Court was also unsuccessful. However it does raise some interesting points, in the case of Alan Burns and Another -v- The Governor of Castlerea Prison and Another. The Supreme Court made a number of findings based on the evidence, however in summary it now appears that the position on legal representation in internal disciplinary hearings is that:

 

  1. There is no general right to legal representation.
  2. However in some "exceptional circumstances", the presence of a lawyer may be required in order to ensure fairness.
  3. The Court listed the following factors to be considered when deciding if  "exceptional circumstances" exist:

 

These factors emphasise the importance of having clear policies and procedures in place relating to disciplinary proceedings and that these are followed at all times, in order to minimise the risk of "exceptional circumstances" arising. It also re-emphasises the need for employers to have a record confirming that all employees have been made aware of the disciplinary policies and procedures.

 

In the short term Employers should now amend all existing disciplinary policies and procedures to include a section excluding the right to legal representation to maximise their ability to exclude a lawyer. For further information please

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