Legal representation in workplace disputes – clarification from the Supreme Court

Background

In brief, the employee in McKelvey had been the subject of an investigation concerning allegedly irregular purchases of fuel using a company card, following which his employer proposed to commence disciplinary proceedings. The employee had previously obtained an injunction before the High Court preventing the disciplinary process from progressing until such time as he was entitled to be legally represented at any disciplinary hearing. This injunction was later discharged by the Court of Appeal which allowed an appeal (on which, see our previous briefing here).

Decision

In the Supreme Court, Clarke CJ stated that the “overarching principle” is that “it is only in those cases where legal representation is necessary to achieve a fair hearing that any implied entitlement to such representation can be said to exist”. To state that a case may be somewhat better presented with the forensic skills of an experienced lawyer “falls a long way short” of stating that the presence of a lawyer is necessitated in order for the process to be fair. As such, merely because it may be possible to locate a lawyer who might bring some additional advantage to the employee does not lead to a process being unfair and instead the essential question is whether the absence of legal representation would leave the employee without adequate representation.

Clarke CJ considered certain criteria identified in previous case law of the Court and indicated that, while these criteria did not need to be separately established, they formed part of an overall evaluation regarding whether legal representation was necessary to render a process fair. The criteria are uncontroversial and include the seriousness of the charge; the potential penalty; whether points of law are likely to arise; the capacity of the employee to present his own case; the need for speed in making the adjudication; procedural difficulty; and the need for fairness between the parties. The Court considered the fact that the charges may also constitute a criminal offence to be “of some marginal relevance but… of limited weight”.

Clarke CJ also addressed the appropriateness of a court intervening before or during (as opposed to after) a disciplinary process and restated the principle that the courts should be reluctant to intervene while a disciplinary process is ongoing save where a process has “gone off the rails” such that there is no reasonable prospect that any ultimate determination could be sustainable in law. In this respect, mere speculation about issues which might arise in the course of a hearing would not justify a decision that legal representation is necessary. The Court also indicated that the regular halting of a disciplinary process because of the possibility that something might have gone wrong could potentially operate “to defeat the orderly conduct of employer/employee relations”.

In applying these principles to the case at bar, Clarke CJ stated, tellingly, that there was nothing in the allegations, the likely evidence or the process likely to be followed which would place the disciplinary proceedings against the employee beyond the competence of an experienced trade union official. He restated that “an internal disciplinary process such as this is not a criminal trial” and was not governed by the rules of evidence or procedure that might apply in an analogous situation in the courts. In a separate judgment, Charleton J echoed that criminal trial rights are not universally applicable to all enquiries and that “the place to start, and often to end, is the contract of employment”. While not addressed by the Court, these comments could arguably be extended to refer to an employee’s right to cross-examine witnesses in the course of workplace disputes.

While the allegation (essentially of theft) was considered by Clarke CJ to be a serious one which could result in the employee’s dismissal, this cannot, of itself, he said, bring the case into a category where legal representation is required. However, if these were coupled with “particularly difficult issues of law or extremely complex facts”, the cumulative effect may be, in “an exceptional case”, that legal representation is required.

Concluding remarks

The judgment leaves open the possibility that McKelvey may become entitled to legal representation at some later stage if the situation demanded it.  It is worthy of note that Clarke CJ made clear that the decision in McKelvey did not address whether or how an employer might exclude by contract or policy any entitlement to legal representation in an employment law context. However, given the emphasis of the judgment on the principles of constitutional justice, it is a brave employer who would seek to rely upon any such language in attempting to exclude legal representation where the facts reach the exceptionality threshold outlined in McKelvey. Of course, on the flipside, there is nothing in the McKelvey case to prevent an employer making an express provision for legal representation in workplace disputes, nor from exercising its discretion to allow same in any event.

Employers will welcome this recent judgment, particularly its underlying assumption that it is wholly undesirable to involve legal representation in disciplinary procedures unless these are mandated by constitutional justice. There is some reassurance in particular for employers with a unionised workforce that in the overwhelming majority of cases, an experienced trade union representative is sufficient to ensure a fair process. However, in non-unionised workforces, the extent to which an employee may seek representation (beyond the routine presence of a colleague in any disciplinary hearing) remains less clear, given the focus of Clarke CJ’s judgment in McKelvey on the competence of trade union officials.

While the overall assessment (of whether legal representation is necessary for there to be a fair process) remains a fact-sensitive one, it is significant that very serious charges and the very real potential for dismissal and reputational damage in this case did not satisfy this test.  Indeed, the judgment of Clarke CJ presumes that such cases as will meet this threshold will be particularly “clear” cases. The broader question, however, of the circumstances in which an employee may have a legal right to cross-examine witnesses in the course of workplace disciplinary issues, remains to be clarified.