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Will employer investigations now become like mini legal proceedings?

Barry Walsh



The recent High Court judgment in Lyons v Longford & Westmeath ETB [2017] IEHC 272 has rightly raised eyebrows (to put it nicely) amongst many seasoned HR practitioners and employment lawyers. The recent decision seems 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 may have made allegations against them. The aspect of the decision that particularly surprised most observers is that the ruling 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. It is well known that “fair procedures” apply to disciplinary processes. Fair procedures is not a prescriptive term and is not defined by statute. The principles of fair procedures in employment processes are derived from case law and from codes of practice such as the LRC Code of Practice on Grievance and Disciplinary Procedures. 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 near 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, worse still, whether complainant employees could be subject to cross examination by such lawyers during investigation hearings. That would be an extraordinary situation in the case of most internal employer investigations, especially considering that extensive cross examination does not occur in most disciplinary hearings or, arguably, even in many Workplace Relations Commission hearings. As such, Lyons seems to go further than the Supreme Court judgement in Burns v The Governor of Castlerea Prison (2009) which held that legal representation may be required in certain situations at disciplinary 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 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.