Employee Disciplinary Investigations & the Right to Legal Representation

The recent decision of the High Court in Michael Lyons –v- Longford Westmeath Education & Training Board, [2017] IEHC 272 signals a greater need to pay close attention to employee disciplinary investigations and processes. It may be the case that employees should be given the right to legal representation through a Solicitor or Counsel when under investigation in relation to bullying or harassment, or incidents that could result in an adverse finding against the employee.

A decision delivered by Mr. Justice Eagar of the High Court in May 2017, the background circumstances of Michael Lyons –v- Longford Westmeath Education & Training Board, [2017] IEHC 272, surround an investigation into a complaint of alleged bullying. The employer’s HR Company appointed two investigators, however; the process excluded the employee from having legal representation, and excluded the employee from the opportunity of having the accusations levelled at him to be scrutinised and cross examined. It was closely considered in this case where an investigative process can lead to a dismissal, that cross examination should be allowed as it is deemed to safeguard fair procedures. The previous judgment of In Re Haughey [1971] I.R. 217, was referred to where, the Court in the latter case found that where damaging allegations were made against a person, that person was entitled to a minimum protection of;

  1. That he should be furnished with a copy of the evidence which reflected on his good name;
  2. That he should be able to cross examine, by counsel, his accuser or accusers;
  3. That he should be allowed to give rebutting evidence; and
  4. That he should be permitted to address, again by counsel, the Committee in his own defence.

Finally, it should be noted that at the height of this case, it appeared that this matter had not even progressed to the stage of a disciplinary hearing, and was simply a disciplinary related investigation.

Mr. Justice Eagar held that Fair Procedures manifestly indicate that the applicant has the right to confront and cross examine an individual who has made allegations against him, and further noted that in relation to the process adopted by employers when dealing with complaints against employees, it is quite clear that the exclusion of Solicitors and Counsel, and the refusal to allow cross examination…is a breach of the Constitutional right to Fair Procedures.

Employers should be very cognisant of this particular case where a disciplinary investigation is taking place, or even considered in relation to an employee.

Should you require any further information, please do not hesitate to contact Employment Solicitors Carter Anhold & Co. Sligo & Dublin 071-9162211.