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.
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.