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3. Based on the Lyons v Longford & Westmeath decision, will employer investigations now become like mini legal proceedings?

Julie Austin
25/08/2017

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Ireland

The recent High Court decision in Lyons v Longford & Westmeath [2017] IEHC 272 was notable in that Mr Justice Eager, in his judgment, seemed to suggest that employees who are the subject of internal bullying investigations have a right to legal representation at internal employer investigation hearings and a right to ‘confront’ or cross-examine fellow employees who have made allegations against them. The ruling further suggests that such rights exist even outside of disciplinary hearings, and could arise in non-disciplinary investigations conducted by employers where those investigations could subsequently lead to dismissal. The background to the case is as follows. The applicant, a teacher, was the subject of a complaint of bullying made against him by a colleague, who referred to a number of alleged incidents spanning a number of years. The complainant had first brought this to the principal’s attention in 2008, yet the applicant did not become aware of these allegations until 2015. The respondent engaged an independent HR company to conduct the internal disciplinary process. On completion of this process, the HR company investigators upheld the allegations in relation to four specific instances, all of which took place in 2015. Throughout this process, the applicant was never afforded the opportunity to cross-examine the complainant, although the investigation process included several meetings and interviews. On receipt of the HR company’s report, the respondent advised the applicant that the findings against him constituted ‘unacceptable conduct’ and invited him to attend a disciplinary meeting at which the sanction to be imposed on him would be decided. At this point the applicant made an application for judicial review. The decision seems to go further than the Supreme Court decision in Burns v The Governor of Castlerea Prison (2009) which held that legal representation may be required in certain situations at disciplinary hearings. There are signs that Lyons may be distinguished on its facts. It has always been understood, up to this point at least, that non-disciplinary investigations were not regulated to the same extent as disciplinary processes. Well known earlier High Court decisions such as Minnock v Irish Casing (2007) and Cribbin v PLC Ingredients (2012) supported the notion that the courts would be reluctant to interfere in non-disciplinary investigation processes. However, more recent case law has demonstrated an increased interference by the courts in internal processes. In Reilly v Bank of Ireland (2015) the High Court set significant limits on an employer’s right to suspend an employee. Now, most recently, the Lyons decision suggests that, where investigative procedures are invoked that could lead to dismissal, the respondent employee cannot be deprived of a right to legal representation at investigation hearings or a right to cross-examine those who may have made accusations, even if they are fellow employees. The vast majority of internal employment processes never get as far as the High Court and so the net question for employers is whether employees who are the subject of an investigation can now bring legal representation to investigation meetings or whether complainant employees could be subject to cross-examination by lawyers during investigation hearings. Like much case law, Lyons, to some degree at least, turns on its own individual circumstances. Most judges adjudicating on employment disputes are primarily addressing the specifics before them. The employer’s bullying policy in Lyons denied the “accused” employee the right to legal representation or to cross examination during the investigation process. Furthermore, the fact that the accused employee in that case was a teacher accused of bullying another teacher and that his future in the profession, and not just his job, was potentially at stake seems to have been a significant factor in the decision. It is not precisely clear how broad a principle the High Court intended to establish when adjudicating on the Lyons case. It is not precisely clear how broad a principle the High Court intended to establish when adjudicating on the Lyons case and perhaps this is the greatest challenge for HR practitioners and employment lawyers. As was the situation before this decision, each internal employer investigation situation should be considered on its own facts. Employers and their advisers will accordingly be keen to try and distinguish the Lyons decision.  Many employers will be eager to say that rights to legal representation and cross examination will simply not apply in many investigation processes, particularly where dismissal is not a likely consequence or where the process is purely information gathering and there is no allegation as such against the employee. Nevertheless, it remains a troubling and potentially problematic precedent and employers conducting various internal investigations can expect respondent employees and their advisors tactically seizing on Lyons to try and complicate what would previously have been a reasonably straightforward employer processes. This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie