A recent High Court decision has caused some concern amongst lawyers and HR practitioners by declaring a right to legal representation and a right to cross-examine evidence in a workplace investigatory meeting.
In Lyons v Longford Westmeath Education and Training Board (2017), the deputy principal of a community college was the subject of disciplinary proceedings concerning allegations of bullying upon which the investigator made certain findings of fact against him. The High Court considered that, as a matter of law and fair procedures, an individual “whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence.”
The High Court ruled that the applicant should have been provided with the right to legal representation and the right to cross-examine the complainant at the preliminary investigative stage in the process undertaken by the investigating body. This is particularly true where the complaints made in the case may lead to dismissal.
This decision was somewhat of a surprise as it is generally accepted that the principles of natural justice and fair procedures do not need to be fully adhered to in relation to employment investigations. What may distinguish the Lyons decision in this regard is that the report prepared by the investigator made findings of fact with respect to the complaint and also formally decided upon the bullying allegation made against the applicant.
The High Court issued two additional decisions on fair procedures with respect to investigations soon after the Lyons decision. Although these judgments, E.G. v The Society of Actuaries in Ireland (2017) and N.M. v Limerick and Clare Education and Training Board (2017), do not refer to the Lyons decision, they do reaffirm the position that fair procedures do not apply in full to the preliminary investigation stage so long as such investigations are not the final decision on the allegations under scrutiny.
In the E.G. decision, the court found that a distinction may be drawn between “the standard of fair procedures applicable to an investigation which is in essence ‘information gathering’ and that applicable to the making of a finding that could lead to the conclusion of a complaint by its dismissal or sending it forward…to a further stage on a finding of a prima facie case.” The High Court ruled that a full panoply of rights including an opportunity to cross-examine witnesses was not required at the investigative stage in that case.
Similarly, in the N.M. decision, the court found that the applicant was not entitled to an oral hearing or an opportunity to cross-examine in circumstances where the impugned investigation was not regarded as “a final or binding finding of fact against the applicant.“
The takeaway message from these decisions is that employers may want to distinguish between investigatory meetings, which are essentially information-gathering, and investigations, which make findings of fact. Rights to cross-examine and legal representation may apply to the latter but not the former. HR practitioners will want to clarify the type of investigation and its terms of reference.
Written by Catherine O’Flynn and Richard Smith of William Fry and Roger James of Ogletree Deakins