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Workers in Ireland have the right to representation at disciplinary hearings.  The Labour Representation for Employees at disciplinary hearingsRelations Commission has produced a Code Of Practice or COP on Grievance and Disciplinary Procedures that enshrines this right in law.

The COP states that its principles and procedures “should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues”.  In that sense the COP is allowing for circumstances where employers do not have their own disciplinary procedure.  But obviously the COP is unable to reflect the situation in any specific employment context.    Indeed it says that “procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally”.  So it is obviously in any employer’s interest to generate their own disciplinary procedure.

So what does the COP say about workers’ rights to representation at a disciplinary hearing?  There are two relevant extracts :

1.     “For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise.”

 2.     “That the employee concerned is given the opportunity to avail of the right to be represented during the procedure”

Employers need to draft their own procedure being mindful of what the COP is saying.  So – can an employee choose either a colleague or a union representative?  Do employers’ procedures need to reflect that choice?  But what if the particular employer does not negotiate with unions?  And what if the employer’s policy states that the employee can choose (only) a colleague?

The situation remains in a state of flux.  By way of background, we should look first at a 2005 Labour Court ruling (LCR18364) that threw these questions into stark relief.  The case had arisen when three Dunnes Stores workers in Tralee were suspended.  In the context of follow-on disciplinary hearings the suspended workers claimed that their employer refused to let them choose to be represented by a union.  The employer did not dispute this claim – but claimed that the COP allowed the employer to make the choice as to whether employees would be represented by colleagues or union representatives.  Further, the employer pointed out that this was specified in its internal disciplinary procedure – a procedure that was incorporated into contracts of employment which had been accepted by the workers.

So here was a situation where an employer was mindful of the COP and had drawn up a disciplinary procedure which it claimed was consistent with the COP – a procedure which the employees either directly or indirectly had accepted.   However, the Labour Court ruled though that “it is the employee and not the employer who has the right of election as between the modes of representation provided for by the Code of Practice”.  Correspondingly, the result of the case was that the complaint, which had been brought by the union, was deemed well-founded.  So that would seem to suggest that a precedent had been set – that employees could insist on being represented by a union.

However, that is no longer the case – and this is because of a Supreme Court ruling in early 2007 in a case Ryanair v The Labour Court.

The Labour Court had been given the right by Industrial Relations (Amendment) Acts 2001–2004 to make binding recommendations in instances where “it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute”.  See section 2(1) of the 2001 Amended Act.

In a 2004 dispute between Ryanair and its pilots the dispute was referred to the Labour Court by IMPACT, the employees’ union.  In 2005 the Labour Court ruled that there was a trade dispute and that Ryanair had failed to engage in collective bargaining.

Ryanair, claiming that there was no trade dispute, first appealed this ruling to the High Court which rejected their appeal – and then appealed that High Court rejection to the Supreme Court which upheld their appeal.  The Supreme Court was critical of how the Labour Court had conducted its affairs, for example, in making a ruling “in the absence of hearing evidence from at least one relevant pilot who was an employee of Ryanair”.

This case has been precedent setting – allowing employers, in some circumstances, to exclude trade unions from being present in disciplinary hearings.  Employers need to be very careful though in taking such a step as the employer takes a calculated risk in doing so.

There is more though.  Recent case law tells us that, when considering employee representation, it is no longer sufficient for employers to be mindful of the COP’s provisions.  For example, an Employment Appeals Tribunal(EAT) ruling in 2010 (UD1480/2009) showed that employers in certain circumstances should allow employees to have legal representation at disciplinary hearings.  The EAT considered the employer’s procedure to be flawed “in that they prevented her legal representative attending the meeting which ultimately led to her dismissal”.  The EAT did not rule that the employer was obliged to allow legal representation at less serious hearings, nor that the selective right to  legal representation be made explicit in employers’ policies.  But the implication for employers is clear : if a hearing is taking place at which a possible outcome is dismissal, employers should seriously consider allowing the employee to have legal representation.

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