The recent decision of the High Court in Lyons v Longford Westmeath Education and Training Board has raised serious questions for both employers and employees relating to the role of lawyers during the course of an investigation.
In Lyons, an external investigator had been engaged by the employer to investigate allegations made against the employee, who was a teacher employed by the Education and Training Board. The High Court decided that “proceedings” adopted by a third party investigator were in breach of the employee’s constitutional rights to fair procedures and the protection of his good name, in particular, as the employee was not permitted to have legal representatives act on his behalf and there was no provision for cross-examination of the complainant by the employee’s legal representatives.
Fair procedures and natural justice are a key feature of the Irish legal system, but if Lyons is applied to its logical conclusion (ie, that all fair procedures rights apply at all stages of workplace investigations), once an employer engaged on an investigation of a serious matter that could ultimately lead to a dismissal, then every employee involved would be entitled to bring a lawyer to each investigation meeting and, not only that, the lawyer must have the opportunity to cross-examine each witness who is saying something about his/her client.
Logically, each witness would then want their own lawyer to protect themselves in that scenario and the employer would want their own legal representation. The investigator is not a judge or an adjudicator trained in managing what has now become a quasi-courtroom and ensuring sufficient protection of employee witnesses (particularly with a bullying allegation). Who pays for these costs and will it mean that those who can afford the best lawyers have a better chance of successfully preventing what might be an entirely legitimate investigation at the very first stage?
Where the State has invested significant resources in establishing the new Workplace Relations Commission and newly empowered Labour Court, which are intended to provide lower cost for a for employers and employees to resolve disputes, it is strange that a fact-find investigation (let alone a disciplinary process that may then flow, as well as an internal appeal), could be more formal, complex and costly than the statutory processes that are designed to resolve these issues.
In a scenario where an employer is simply seeking to establish the underlying facts, this would lead to hugely increased costs and could paralyse all but the most well-resourced investigation process. The indirect effect of the decision could discourage employees from coming forward with wrongdoing (which was the purpose of the Protected Disclosures Act 2014).
The observations of Mr Justice O’Donnell in the recent Supreme Court decision in Ruffley v the Board of Management of Saint Anne’s School are also relevant in that they demonstrate the Courts’ desire to refrain from initiating a “chilling effect" insofar as the conduct of disciplinary procedures in an employment context is concerned. In that case, which concerned bullying resulting from a flawed disciplinary process, the Court remarked specifically on the Courts’ desire to avoid the negative social cost which would be incurred “if the test adopted in relation to liability for bullying led schools or employers to avoid pressing disciplinary matters" and noted that any such test should be formulated so as to refrain from “inhibiting workplace activity to an excessive degree”.
Helpfully, however, it seems that Lyons may not be as far reaching as it first seems and there are a number of grounds on which it can be distinguished, which has been borne out by more recent cases.
In reaching his determination that “in circumstances where a complaint is made which could result in an individual’s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to fair procedures”, Mr Justice Eager placed significant reliance on a number of cases where individuals appeared before tribunals and their entitlement to legal representation in that context. However, an internal investigation is not a tribunal and, in particular, the Court did not refer to the Lobour Relations Commission Code of Practice, the Supreme Court judgments in Burns v The Governor of Castlerea Prison and O’Sullivan v. Law Society of Ireland, as well as a number of employment-related cases which applied a more proportionate approach.
In the Castlerea Prison case, both the High Court and Supreme Court considered whether a prison officer against whom complaints had been made was entitled to legal representation at an oral hearing. The High Court had decided that the charges were sufficiently serious to warrant legal representation, however this was overturned on appeal to the Supreme Court. The Supreme Court was of the view that legal representation should remain the exception and not the rule in an oral hearing and remarked that the contrary view would be against the requirements of natural and constitutional justice. In Aziz v Midland Health Board the High Court considered the entitlement to legal representation in the context of disciplinary hearings and concluded that “there is no general right to legal representation at quasi-judicial disciplinary hearings such as those in the present case”.
It is unclear how these cases can be squared with the reasoning in Lyons as they are not mentioned in the decision.
Other recent cases point to the limits of the Lyons decision. The cases are: E.G. v. The Society of Actuaries in Ireland and N.M. v. Limerick and Clare Education and Training Board. The key principle of both cases is that so long as an investigation’s purpose is to establish a preliminary view, where reasonable and proportionate fair procedures are allowed at that stage and full fair procedures rights are afforded at the disciplinary phase, then less formal procedures are appropriate at the investigation stage and, in particular, it is reasonable that cross-examination will not apply.
What do employers need to consider?
While the more recent, as well as the older, cases provide clarification to employers embarking on an investigation process, Lyons is an important reminder of the fundamental importance of the relevance of fair procedures in workplace investigations.
If, as the more recent commentary suggest, Lyons is a case confined to its own facts, what constitutes “fair procedures” or “due process” will vary depending on the circumstances of a particular case. A number of key principles are important to remember:
- follow established procedures and make sure that they are fair
- the investigation phase and the disciplinary process should be separated
- the employee should have the opportunity to an appeal
- where practicable each stage of the process should be decided by a different decision-maker of appropriate seniority and who has no interest in the outcome
- make sure that the investigation phase is a pure “fact-find” and that the investigator adheres to this principle both during the process and in drafting a report
- while employees may, in very serious circumstances, be suspended on full pay pending the outcome of an investigation, suspension without pay would be a sanction and should not be imposed at the investigatory stage
- details of any allegations or complaints should be put to the employee concerned in writing
- the employee must be given the opportunity to respond fully to any allegations or complaints
- the employee should be given the opportunity to avail of the right to be accompanied during the disciplinary procedure
- in limited circumstances, legal representations be appropriate, as the exception rather than the norm.
The decision in Lyons sits uncomfortably with statutory codes and previous decisions of the High Court and Supreme Court relating to the procedures to be applied to disciplinary hearings in employment ie, that they be fair to all the parties involved.
While the right to challenge one’s accuser and to cross-examine may arise in limited cases, an employer will also need to have regard to the rights of a complainant/witness and the possible implications of an overly-zealous cross-examination outside the confines of a court room where the rules of evidence do not apply. This is particularly so since it is unclear from the Lyons case whether the right to cross-examine witnesses extends to a right to have non-legal representatives engage in such activity on the part of an accused employee. It is also unclear how this right sits with the qualified right of the employee to the confidentiality of their identity under Section 16 of the Protected Disclosures Act 2014.
While employers should be aware of the existence of the decision in Lyons and should expect it to be argued by employees subject to allegations of misconduct, its effect on the conduct of workplace investigations and disciplinary processes may not be as far reaching as originally thought.
A workplace investigation should not be turned into a courtroom!