The High Court has ruled that employees are entitled to be legally represented during a workplace investigation and that employees have the right to cross examine witnesses during the process.

This is a very significant development to the law on workplace investigations.

Background

Many employers and employees will be familiar with the common practice of workplace allegations being investigated in the first instance by an independent investigator and thereafter being referred, where appropriate, to a disciplinary hearing which may in turn result in sanctions up to and including dismissal.

In some cases the investigator appointed may be a person from within the employer company. In other cases the company may go so far as to appoint a completely independent third party to carry out the investigation.

In the case of Michael Lyons v Longford Westmeath Education and Training Board [2016 No. 708 J.R] the employer appointed an external third party investigator. The investigation related to a complaint of bullying against an employee and resulted in the issuing of a report and findings by the investigator. The matter was then referred to a disciplinary hearing. It was at that stage that the employee sought to judicially review the process he had been subjected to.

Details of the case

As part of the High Court challenge, the employee argued that his right to due process and fair procedure had been breached by a failure on the part of his employer to allow him to be legally represented during the investigation process and by a failure to allow for the cross examination of his accuser.

It is noteworthy that the employee does not appear to have requested any facility to cross examine any witness either before entering into the investigation or at any stage during the investigation. Neither does the employee appear to have raised the issue during the course of a procedural appeal to the Workplace Relations Commission.

Decision

The Court held that the employee’s rights had been breached by the employer’s failure to allow the employee to be legally represented and by its failure to provide for the right to cross examine.

In the decision the Court made reference to the fact that investigative bodies such as external third party professional investigators are utilised by employers both in the public and private sector and that generally the process adopted by such bodies exclude legal representatives from attending and cross examining on behalf of the employee. The Court stated, however, that “where investigative processes can lead to dismissal, cross –examination is a vital safeguard to ensure fair procedure.”

In fact the Court went so far as to say that the processes adopted in the Lyons case failed to vindicate the “good name” of the accused employee, in their refusal to hold an appropriate hearing, whereby the accused employee through solicitor or counsel may have cross-examined the complainant. The Court went on to say that equally, the complainant (i.e. the person who had made the bullying complaint) should be entitled to then cross-examine the accused employee.

What can be learned from this case?

It will remain to be seen how the impact of this decision will bear out practically. However, it is clear that employers and investigators need to be careful to ensure that whenever an employee’s job or their good name is at risk, the investigation/disciplinary process should afford the employee the full rigour of fair procedures from the very outset of the investigation. This should include the right to legal representation and the right to cross examine one’s accuser. These are rights which employers and investigators have in general been reluctant to provide for up to now.

In light of the Lyons decision, employers should consider and review their investigations/disciplinary policies and procedures in order to provide for these new developments. The Lyons decision also emphasises the importance of seeking the correct HR/legal guidance as early on as possible in a workplace investigation/disciplinary process as employers may find themselves in difficulty if they seek to rely, in the context of a disciplinary process, on the findings of an investigation report prepared on foot of a flawed process.

Michael Lyons v Longford Westmeath Education and Training Board [2016 No. 708 J.R]