On 5 May 2017, the High Court1 decided that a deputy principal accused of bullying a fellow teacher should have been afforded the right to legal representation and the right to cross-examination during the process of an internal investigation. Under the employer’s bullying policy, an employee accused of bullying was not entitled to the right to legal representation or the right to cross-examination during the investigation process. The Court found this to be contrary to fair procedures and in breach of Article 40.3.1° and 2° of the Constitution, particularly where the findings of the investigation did not simply reflect on the employee’s reputation but may have prevented him from practising his profession, either for a specified period or indefinitely.
In May 2015, the Applicant employee was informed that a bullying complaint had been made against him by a colleague. The complaint, spanning over 100 pages, cited numerous incidents alleged to have occurred between 2008 and 2015.
At the complainant’s request, an investigation was launched under to the Respondent employer’s Bullying Prevention Policy. The employer retained an outside third party to This document contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate. investigate the complaint and issue a report of its findings. As part of the investigation process, the Applicant submitted a written response to the investigator and attended meetings and interviews. The report upheld the allegations of bullying as against the Applicant insofar as it related to four matters alleged to have occurred between January and April 2015. The report found that the Applicant’s behaviour on these four occasions could reasonably be regarded as undermining the complainant’s right to dignity at work as per the definition outlined in the Bullying Policy.2
The employer wrote to the Applicant on 20 April 2016, informing him that the report would be adopted and that he had 15 working days to appeal the decision. The Applicant appealed but his appeal was rejected. Thereafter, the employer wrote to the Applicant and told him that the report would be upheld and, considering the serious findings of the report, he would be required to attend a Stage 4 disciplinary hearing convened to determine the disciplinary action, if any, that would be taken against him.
Prior to the hearing, the Applicant’s solicitor wrote to the employer seeking assurances in relation to his client’s right to fair procedures, particularly his right to cross-examine the complainant, his right to the presumption of innocence and his right to be advised in advance and in writing of the specific allegations made against him. Moreover, the Applicant’s solicitor argued that the proposed decision-maker and chief executive of the employer could not rely on the findings of the investigator’s report at the hearing because the Department of Education Circular 71/2014, which provides for the commencement of a Stage 4 disciplinary hearing in certain cases, did not refer to or in any way impact upon the investigation. On 9 September 2016, the High Court gave leave to the Applicant to apply for judicial review and ordered that the proceedings be stayed until the judicial review application had been determined.
THE SUBJECT OF REVIEW
The Respondent employer submitted that the subject of the review should be limited to the decision to summon the Applicant to the Stage 4 disciplinary hearing and therefore an order of certiorari could only quash the decision of the Respondent employer and not the prior investigation process. The Court disagreed, holding that the Respondent’s chief executive relied on a “flawed and constitutionally impermissible finding of bullying” and as the finding resulted from the investigation process, the process of the investigation fell “four square within the remit and ambit of the judicial review sought by the applicant”. 3
The three main issues to be determined in the case were:
» the issue of fair procedures during the investigation;
» whether bias arose as a result of the employer acting on foot of the investigation process; and
» the relationship between the Circular (disciplinary procedures) and the Bullying Policy. 4
THE RIGHTS TO LEGAL REPRESENTATION AND CROSS-EXAMINATION
The Court affirmed the established legal principle, namely that “cross examination is a vital safeguard to ensure fair procedure [in circumstances] where investigation processes can lead to dismissal”. Reliance was placed on the judgment of Keane C.J. in Borges v. Fitness to Practise Committee where he stated:
“It is beyond argument that, where a tribunal such as the first respondent is inquiring 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 crossexamine, by counsel, his accuser or accusers. That has been the law since the decision of this Court in Re Haughey  I.R. 217 and the importance of observing that requirement is manifestly all the greater where, as here, the consequence of the tribunal’s finding may not simply reflect on his reputation but may also prevent him from practising as a doctor, either for a specified period or indefinitely”. 5
It was observed that both the Bullying Policy and the Circular precluded a legal representative from acting on behalf of an employee accused of bullying, despite the fact that a finding of bullying against an employee in contravention of the Bullying Policy could amount to gross misconduct which may warrant dismissal in certain cases.
The Court found that in applying the Bullying Policy and the Circular, the investigative procedure adopted contravened fair procedures and was in breach of Article 40.3.1° and 2° of the Constitution because it refused to allow a legal representative to appear on behalf of the Applicant employee and precluded him or his lawyer from cross-examining the complainant.
It was unclear, according to the Court, whether Stage 4 of the Disciplinary Procedure under the Circular entitled a solicitor to accompany the Applicant to the Stage 4 disciplinary hearing. This was irrelevant, the Court held, because “it is the actual investigation that requires the rights to crossexamination and representation” 6 and that such requirement must be implemented before the initiation of the Stage 4 disciplinary hearing under the Circular.
It was observed that similar policies and procedures excluding the right to legal representation and the right to cross-examination are currently adopted by many public and private sector companies when dealing with complaints against employees. Such policies and procedures, the Court found, are contrary to fair procedures and in breach of Article 40.3.1° and 2° of the Constitution. 7
The Court held that if a finding of bullying arose out of an investigation process that respected fair procedures that may amount to conduct of a serious nature and would permit an employer to invoke Stage 4 of the disciplinary procedure under the Circular. However, an employer is not entitled to invoke Stage 4 of the disciplinary procedure under the Circular if the investigative procedure leading to a finding of bullying has not been conducted in accordance with fair procedures.
Accordingly, the Court decided that the employer was not entitled to invoke Stage 4 of the disciplinary procedure because the investigative procedure giving rise to the finding of bullying excluded a legal representative from attending the investigation on the Applicant’s behalf and precluded him or his legal representative from cross-examining the complainant.
In summary, the Court held that:
» the investigation was in breach of the constitutional right to fair procedures;
» if a constitutionally sound finding of bullying had been made as a result of an investigative procedure that afforded the Applicant the right to legal representation and the right to cross-examination, this could have amounted to conduct of a serious nature and as such could have been the subject matter of a Stage 4 disciplinary hearing; 8 and
» the summoning of the Applicant to a Stage 4 disciplinary hearing must be set aside, on the basis that the findings of the investigator were in breach of fair procedures and the employer had no constitutionally sound basis to hold a disciplinary hearing in accordance with the Circular.
As a result of this decision, employers should review their existing policies and procedures to ensure that employees accused of bullying are not precluded from exercising their rights to legal representation and crossexamination during an internal investigation process, particularly where the charges are serious and could impact upon the employee’s good name or prevent him/her from practising their profession or jeopardise their likelihood, either for a specified period or indefinitely. Failure to do so may render the process of an investigation contrary to the constitutional right to fair procedures and therefore void.