Speedread

Conducting a fair investigation can be a legal minefield for many employers and a recent High Court decision (Michael Lyons v Longford Westmeath Education and Training Board) has gone a step further, seemingly adding to employees' procedural armoury! The Court held that where one outcome of an investigation was potential dismissal or an adverse impact on the employee's reputation, the employee has both the right to cross-examine the individual accusing him of wrongdoing, and the right to legal representation during the process.

This decision means that employers must be crystal clear as to the scope and nature of any investigation, distinguishing between solely fact finding investigations and investigations which could result in findings against the employee in question. In the case of the latter, it seems the full panoply of natural justice rights must be afforded.

The broad-ranging statements of the judge in this case suggest that prudent employers should proceed more cautiously than ever in carrying out investigations, and afford accused employees with the right to cross-examine and be legally represented during the investigative stage.

What happened?

In May 2015 the plaintiff (a deputy school principal) was notified that a bullying complaint had been made against him by a teacher colleague.

The employer engaged a private company (Graphite) to carry out an investigation in accordance with the “Bullying Prevention Policy – Complaint Procedure for Education Training Board Staff”. This procedure is specifically described as an industrial relations procedure, not a legal or disciplinary procedure.

The accused deputy principal was asked by the two investigators to submit his written response to the complaint and to attend various meetings and interviews. At no stage during the investigation process was he offered the opportunity to cross-examine the teacher making the accusations. On the conclusion of the investigation the deputy principal was provided with a copy of the report which upheld some of the allegations.

The deputy principal subsequently received a letter from his employer advising him that he had fifteen working days to make a limited procedural appeal in respect of the findings of the investigation report. The deputy principal's appeal was ultimately not upheld and he was advised that the investigation report “stands”, together with the “findings” against him. The deputy principal was informed that Stage 4 of the disciplinary process under the Education Act was being invoked and he was invited to a disciplinary meeting, at which dismissal and/or suspension were possible outcomes. At this point the deputy principal's solicitor wrote to his employer advising that he wished to be afforded full and fair procedures, including the right to challenge the evidence against him and the right to cross-examine his accuser.

What did the Court consider?

The deputy principal asserted that he had not been afforded fair procedures in the course of the third party investigation and, accordingly, the findings of that report should not have been used as the basis for the employer's formal disciplinary process. In particular the deputy principal claimed that his right to fair procedures was breached in circumstances where he was not afforded the opportunity to challenge the evidence and he had not been afforded the right to confront and cross-examine the individual who made the allegations against him.

By way of response, the employer adopted the view that in circumstances where the deputy principal had participated fully in the investigation and had not raised the possibility of cross-examination throughout that process, he now could not assert a right to cross-examine.

What did the Court decide?

Justice Eager held that where the investigative process can lead to dismissal, "cross examination is a vital safeguard to ensure fair procedure." He further held that it was "quite clear" that the investigation undertaken by Graphite breached Article 40 (3)(1) and (2) by "the refusal to allow legal representatives to appear on behalf of the applicant."

The Court stated it is "the actual investigation that requires the rights to cross examination and representation, that takes place prior to the initiation of the disciplinary procedure under Circular 71/2014." [emphasis added]

The Court relied on previous court decisions that had considered the scope of fair procedures. In Re Haughey [1971] the Supreme Court stated: "in proceedings before any tribunal where a party to proceedings is on risk of having his or her good name, or his person or property or any of his personal rights jeopardised, any procedures which restrict or prevent the party concerned from vindicating those rights must be outlawed." In Borges v Fitness to Practice Committee [2004] it was held that "where a tribunal is enquiring into an allegation of conduct which reflects on a person's good name or reputation basic fairness of procedure requires that he or she should be allowed to cross examine his or her accuser." The Court was heavily influenced by the reputational damage someone might suffer if these rights were denied.

As the investigation had not afforded the deputy principal the foregoing opportunities, the Court held that the investigation and its findings were, therefore, not sound. The Court set aside the summoning of the deputy principal to the Stage 4 Disciplinary meeting on this basis.

What does this mean for employers?

Employers contemplating any internal investigative processes should pause to consider whether the outcome of that process could result in dismissal, suspension or have an adverse effect on the accused employee's reputation. In such circumstances the net effect of this latest High Court decision is that an employer will need to afford the accused the opportunity to both cross-examine his or her accuser and be legally represented from the outset.

This decision is an unwelcome development from an employer's perspective, potentially introducing lawyers to an internal employer/employee matter at any early stage which may, in and of itself, escalate potential litigation. Furthermore, the practical realities of affording an employee the right to cross-examine his or her accuser, particularly in the context of allegations of bullying or harassment, may have the negative, albeit unintended, effect of dissuading employees from coming forward with their concerns.