In this latest episode of the Matheson Employment Law Podcast Series, Bryan discusses a decision of the High Court from May of this year, which held that employees are entitled to both the right to cross-examine witnesses and the right to legal representation at the preliminary investigation stage of a disciplinary process.  Based on earlier case law on the issue of fair procedures, as also identified in this case, this may not be seen as such a striking legal development, if at the stage in the disciplinary process where the employer is deciding whether the allegations are proven and if so, what sanction should be applied.  However, in terms of actual HR and employment law current practice, it is a very significant development to extend this degree of fair procedures to the preliminary investigation stage, if the investigation is no more than a fact gathering exercise to decide if the matter should go to a disciplinary hearing.  This would require the majority of employers to adapt their practices to allow for both cross-examination and legal representation at investigation meetings, as well as potentially other aspects of fair procedures also.

The decision is expected to lead to added complexity, delay and expense for employers in running internal investigations.  For the very same reasons, it is being closely watched by employment lawyers and employers alike as to whether it will become the “new norm” or if it will be quickly disregarded as an outlier judgment distinguished on its particular facts.  In the interim, we are already seeing some employers hold off on making any changes on foot of this decision and taking the risk on this, rather than concede this point straight off.

The next episode in this podcast series will deal with two more recent High Court decisions from late June which were both issued within weeks of this judgment.  While neither of these two cases specifically deal with the Lyons v Longford judgment, they both address the same point and hold that fair procedures do not apply in full at the preliminary investigations stage, assuming the investigation is not the final decision on the allegations.

Bryan also discusses updates on mandatory retirement ages and the positive impact for employers in the Supreme Court decision on what constitutes bullying in Ruffley v Board of Management of St Anne’s School.

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