High Court rules on the right to legal representation and cross examination in pre-disciplinary investigations

The High Court in the case of Michael Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 has recently ruled on pre-disciplinary investigations and fair procedures.

Background

In May 2015, the applicant teacher, Mr. Lyons, was notified that a colleague had made a compliant of bullying against him. The allegation of bullying was outlined in a 100 page document and cited a number of incidents dating back to 2008.  The respondent (Longford Westmeath Education and Training Board ("LWETB")) engaged an external HR consultancy company to carry out the investigation.  As part of the investigation, Mr. Lyons submitted a written response to the allegations and attended various meetings and interviews. The investigation upheld the allegations of bullying in relation to four specific instances. Following notification that the report was to be “adopted” by LWETB, Mr. Lyons appealed but his appeal was unsuccessful. Mr. Lyons was informed by the Chief Executive of LWETB that the investigation report "stands" together with the "findings" against him.  Mr. Lyons was notified that as a result, he was required to attend a Stage 4 Disciplinary Meeting to determine the disciplinary action, if any, which may arise from the finding of the investigation.

Prior to this meeting, Mr. Lyons’ solicitor wrote to the respondent seeking assurances in relation to Mr. Lyons’ right to fair procedures, including the right to cross-examine his accuser, his right to the presumption of innocence and his right to be advised in writing in advance of the specific allegations against him. When these assurances were not forthcoming, Mr. Lyons applied ex parte to the High Court seeking relief in relation to the lack of fair procedures and natural justice in the investigation process. In particular, in relation to the failure to allow the applicant to have legal representation and to cross examine witnesses against him.  

Decision of the Court

The Court held that the investigation conducted by the external company was in breach of Mr. Lyon's constitutional right to fair procedures. 

While it was noted that the process adopted in the investigation (involving separate meetings and the taking of statements without cross examination) is routinely adopted by many companies, the Court held that “the exclusion of solicitors and counsel, and the refusal to allow cross examination … is a breach of the Constitutional right to fair procedures.” It should also be noted that Mr. Lyons did not make any request to cross examine any witness at any point during the investigation process.

In coming to this conclusion the Court relied on Borges v the Fitness to Practice Committee [2004] 1 IR 103, which provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures. In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first respondent is 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. That has been the law since the decision of this Court In re Haughey [1971] I.R. 217.

The applicant cannot be deprived of his right to fair procedures, which necessitate the giving of evidence by his accusers and their being cross-examined, by the extension of the exceptions to the rule against hearsay to a case in which they are unwilling to testify in person.”

The Court found that it is the actual investigation, which occurs prior to the initiation of the disciplinary procedure that requires the rights to cross examination and legal representation. The Court set aside the summoning of Mr. Lyons to a Stage 4 disciplinary meeting, on the basis that the findings of the investigation were in breach of the fair procedures.

More recent case law 

The issue of fair procedures in investigation and disciplinary procedures is a matter which has given rise to many High Court applications over the years. Since the decision in the Lyons case, the issue has again been addressed by the High Court in the cases of EG v The Society of Actuaries Ireland [2017] IEHC 392 and in NM v Limerick and Claire Education and Training Board, June 2017. In the NM case, the High Court affirmed previous jurisprudence relating to the application of fair procedures during investigations when it confirmed that the right to fair procedures does not apply in full at an investigative stage, provided the investigation is one which involves information gathering and does not result in complaints being upheld or dismissed.

Although the Lyons decision was not specifically mentioned in the EG v The Society of Actuaries Ireland case, the Court stated:

“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 as in this instance to a further stage on a finding of a prima facie case.”

 Implications for employers

The Lyons case threatened to alter the landscape of workplace investigation and disciplinary matters substantially for employers. 

The judgement can be summarised by saying that in any investigation which may result in the dismissal of an employee (or may impact on the good name of an employee), an accused person has a constitutional right to be legally represented and has a right to cross-examine his or her accuser - through counsel. The judgment is not limited to disciplinary proceedings. It also includes investigations that precede formal disciplinary proceedings, e.g. investigations under an anti-bullying policy.

A further notable implication from the decision is that an accused employee also has a further right to be told about these rights. Even if an employee fails to ask for representation or cross-examination it appears that they will not be faulted for failing to so ask. Indeed, in this case, the judge expressly stated that a complainant also has the right to cross examine the accused person.

Arguably, the Lyons case could have been disposed of solely by reference to the specific statutory and administrative framework within which the ETB should have investigated the allegations and determined the sanction against Mr. Lyons.

The decision does not appear to be consistent with previous decisions of the Supreme Court and High Court. The Supreme Court had previously ruled that the right to legal representation could arise in certain circumstances or where required by the principles of constitutional justice. Prior to Lyons, there were also some circumstances in which an accused employee would be entitled to cross-examine witnesses, but the right to cross-examine did not exist in every case and could circumvented if alternative means could be established by which the accused person can challenge the evidence against them. For example, if questions could be put through the chair of an investigation panel, this could obviate the need for cross-examination by the accused person of his or her representative.

It is not clear whether the respondent in the Lyons case has appealed it, but in the three months since the decision there is no evidence of an appeal having been lodged. This means that where investigations are intended to be more than just information gathering, questions remain about how best to marry the judgement in the Lyons case with established policies and investigation practices. It is expected that many employers will seek to distinguish the facts in the Lyons case from their internal procedures but there is no denying that the judgment is likely to be relied upon by employees facing potential dismissal.

For further information on this case, or for general advice in relation to workplace investigations and disciplinary procedures, please contact Lorraine Smyth or any member of the ByrneWallace Employment Law Team.