A recent High Court decision could place an even greater burden on employers when conducting internal disciplinary processes.
This recent case states that employees facing a complaint that could result in their dismissal or damage their reputation are entitled to representation. For employers, the implications are potentially significant as legal representation at any stage of a disciplinary process could be a prerequisite to ensuring fair procedure.
In a recent Judgment of Michael Lyons v Longford Westmeath Education and Training Board (the ETB) of 5 May 2017 Mr. Justice Eager held that where a complaint is made which could result in an individual’s dismissal and/or where it might affect the individual’s right to protect his/her good name, that individual is entitled to fair procedures. This, broadly speaking, means that disciplinary processes (including the investigation stage) that exclude legal representation and which refuse the ability to cross-examine witnesses, may infringe one’s entitlement to fair procedures under the Irish Constitution.
In May 2015 a complaint of bullying had been made against the Applicant Michael Lyons (the deputy Head teacher at Lanesboro Community College in Longford) by a female colleague referring to incidents dating back as far as 2008 of which the applicant was not aware. Longford Westmeath Education and Training Board (ETB) lodged an investigation and engaged Graphite Recruitment HRM Limited to carry out an investigation into this complaint. The Applicant was asked by two investigators from Graphite Recruitment HRM Limited to submit his written report and to attend a number of meetings and interviews. In April 2016 the Applicant received a copy of their report in which the investigators upheld some allegations of bullying. Mr. Lyons appealed this decision, which was later rejected. In August 2016, the Chief Executive of the ETB advised that the applicant was to attend a Stage 4 Disciplinary Meeting on the 15th September 2016 and report of Graphite Recruitment HRM Limited was to be adopted by the Respondent. The Applicant then issued High Court proceedings which sought, inter alia, to quash the decision to bring him to a disciplinary meeting.
JUDGEMENT OF MR. JUSTICE EAGER
In his Judgement Mr. Justice Eager stated that cross-examination is a vital safeguard to ensure fair procedures. The Court cited Keane C.J. in Borges v. the Fitness to Practice : “it is beyond argument that when 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 cross-examine by counsel, his accuser or accusers”.
Eager J also referred to Hardiman J. decision in Maguire v Ardagh  “In proceedings before any tribunal” (as per O Dalaigh C.J. in re Haughey) “a person against whom damaging allegations are made was entitled to the “minimum protection” such as a) a copy of evidence which reflected on his good name b) should be allowed to cross-examine by counsel, his accuser or accusers; c) should be allowed to give rebutting evidence; d) should be permitted to address the Committee. “The Court held that a) the processes adopted by Graphite Recruitment HRM Limited were in breach of Article 40(3)(1) and (2) of the Constitution of Ireland in refusing to allow legal representatives to appear on behalf of the applicant. The adopted process failed to vindicate the good name of the applicant by refusing to hold an appropriate hearing where the applicant through his legal representatives could have cross-examined the complainant. The Court found that the Applicant has the right to cross-examination and legal representation. The Court therefore, set aside the summoning of the applicant to a Stage 4 Disciplinary Meeting as the report from Graphite Recruitment HRM Limited failed to adopt proper and fair procedures. The Court held that “it is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence”. It has also stated as follows “that in the circumstances where a complaint is made which could result in an individual ‘s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to fair procedures, as outlined by the Supreme Court in the case law quoted above.”
This decision undoubtedly raises the bar in terms of the obligations on employers when dealing with employees in the context of potential disciplinary action. On the face of it, this decision states that where a complaint is made that could result in an individual’s dismissal, that individual is entitled to fair procedures which appears to include an entitlement (even at the investigation stage) to legal representation and to the opportunity to cross-examine witnesses.
Such obligations at least at the fact-finding stage of any disciplinary process would not previously have envisaged such an obligation. The reality is that most disciplinary processes can potentially result in an individual’s dismissal and this is therefore a very far-reaching decision. It should be noted however that, in terms of legal representation, the position is governed by the case of Burns and Hartigan -v- The Governor of Castlerea Prison which essentially stated that one was not, save in particular circumstances, entitled to legal representation at internal hearings. Lastly, it is notable that the report of Graphite Recruitment HRM Limited was struck down. Employers quite often take a risk when they externalise their internal processes as they can very often lose control of said processes.
About the author
David O'Riordan is a Partner at SOR and is the Head of the Litigation Department. Since qualifying as a solicitor in 1996 he has gained extensive experience advising a wide range of clients including corporations, professional organisations and individuals on both contentious and non-contentious issues. He acts in all aspects of employment law, commercial disputes, arbitration as well as personal injury plaintiff and defence actions. He has extensive experience representing large multinationals, semi-state bodies, self-insured companies and insurance companies. David also lectures on employment law issues.
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