Fair procedures are a fundamental right under common law and are enshrined in the Irish Constitution. The Irish Courts have consistently been prepared to hold that the level of fair procedures required in an employment investigation or disciplinary is at the upper end of the scale. During the course of 2017 a number of decisions were granted by the Irish High Court which emphasized this long held practice and in particular considered procedural fairness in the context of the employment investigation and whether these rights to fairness extended to an employee’s right to legal representation and right to cross examination. The key features from these decisions were not what fair procedures are required but when the different elements to fair procedures are required. Whilst initially employers and HR practitioners who routinely carry out such investigations reacted to the decision of Lyons v Westmeath Education and Training Board with a sharp intake of breath subsequent decisions have sought to clarify and balance the decision.
In the High Court case of Lyons v Westmeath Education and Training Board, Mr. Lyons was the subject of an investigation into a complaint of bullying made against him by a colleague. His employer appointed an external HR Company to conduct an investigation into the allegations. During the investigation Mr. Lyons was not afforded the opportunity to cross examine his accuser and ultimately the investigation report made “findings” against him. In his judgement Eagar J. found that the procedures invoked by the investigator had breached Article 40 (3) (1) and (2) of the Irish Constitution which set out that;
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
Eagar J. found that by denying Mr Lyons the right to cross examine his accuser and not affording him legal representation, that he had been denied fair procedures.
This case was clear that where a dismissal or reputational issues were at risk in an investigation then employees should be afforded the right to be legally represented and they should also be granted the opportunity to cross-examine their accusers. Understandably employers were disconcerted by the fact that if they were to initiate investigations into internal matters that every employee may seek to bring with them legal representation and cross examine all witnesses which from a practical perspective could potentially interfere, delay and hinder internal workplace investigations.
Two subsequent decisions of the High Court which were also handed down in 2017 added some clarification for practitioners. These cases appear to make the critical distinction of the level of fair procedures required between an investigation whereby “findings” are made and an investigation which is purely “fact gathering”. In the case of NM v. Limerick and Clare Education and Training Board a teacher sought to prevent the continuation of a disciplinary arising out of allegations of sexual harassment. The critical issue in this case, as identified by the Court was that;
“The decision to be taken by the investigators in this case could not be regarded as a final or binding finding of fact against the applicant.”
In the case of EG –v- The Society of Actuaries Ireland this distinction again between whether the process makes a finding or merely gathers information was relied upon by McDermott J. in finding that EG was not denied fair procedures by the failure of the investigator to afford him the right to cross examine witnesses.
Thus whilst the decisions of 2017 caused concern amongst employers and HR practitioners initially, the later decisions have provided reassurance that legal representation and the right to cross examine are not automatic rights in ensuring fair procedures are followed. What these decisions do serve to do however is to send a message to all employers and HR practitioners that great care and regard to fair procedures should be given at the outset of any process. The parties should consider each case on its own facts and that when conducting such investigations they should consider and be clear at the outset and at the time of drafting terms of reference as to whether the investigation is to be a “fact finding” or “fact gathering” exercise.