Can I bring a solicitor to my disciplinary hearing

Being called to a disciplinary hearing by your employer is a frightening prospect

November 20, 2018

Being called to a disciplinary hearing by your employer is a frightening prospect, regardless of whether or not you feel the procedure is justified. If you have been accused of something serious, particularly something illegal, such as theft or assault, you may feel that you don’t have the wherewithal to navigate the process alone.

If your employer requests that you attend a disciplinary hearing, you are always entitled to bring a support person with you, in the form of a colleague or union representative. You have the right to have a union representative present even if the company does not recognise a union.

In the normal course of things, your employer is not obliged to allow you to bring a solicitor with you.

There have, however, been a number of cases in Ireland that have considered whether or not legal representation should be allowed at disciplinary hearings in exceptional circumstances.

One such recent case involved a railway worker whose employer initiated formal grievance procedures to investigate alleged theft by the worker, which, they said, resulted with “the company suffering a significant financial loss.”

The man applied to the High Court for an injunction to restrain his employer from commencing the disciplinary hearing against him unless his claimed entitlement to legal representation was agreed to. The judge granted the injunction because it was recognised that the charges levelled against the man were extremely serious and put at risk his reputation and future employment prospects. In those circumstances the judge concluded that the inquiry proposed would not be fair unless the man had legal representation.

This decision was later overturned in the Court of Appeal, with the judge stating that “the allegation of misconduct made against [the employee] is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in a position to deal with adequately with the assistance of [the employee’s representative], an experience trade union official.” Nonetheless, the judge did note: “Should it come to pass that at some future stage of the disciplinary process [the employee] can point to some matter of significant factual or legal complexity which he could not reasonably be expected to navigate safely without the assistance of legal representation, it would be open to him at that point in time to renew his application on the grounds that he required such representation to guarantee a hearing that was fair and in accordance with natural justice.”

In summary, standard practice in disciplinary hearings is that the accused is entitled to be accompanied by a colleague or trade union representative. It is only in exceptional circumstances that the employee will be granted permission to bring their solicitor to the hearing. However, this is a complex area that does not have a ‘one size fits all’ answer. If you’re in doubt about what your rights as an employee are, contact us today in confidence.