Employment Update: Fair Procedures At Investigation Stage – Current Position?
01 September 2017
The May 2017 High Court decision in Lyons v Longford Westmeath Education and Training Board indicated that where a complaint is made which could lead to an employee’s dismissal, the employee is entitled to fair procedures at the initial investigation stage. However, more recent case law suggests that the Lyons decision was influenced by specific circumstances. We examine the current position regarding fair procedures during investigations.
The generally accepted principle is that employees are not entitled to fair procedures in full at the initial investigation stage, provided the initial investigation:
- is a fact-gathering exercise only; and
- does not result in allegations being upheld or dismissed.
The decision in Lyons, details of which can be accessed here, caused a stir by suggesting that where a complaint is made which could result in an employee’s dismissal, the employee is entitled to fair procedures at the initial investigation stage. This included the right to legal representation and the right to cross-examine witnesses. Arguably, however, Lyons should be read on its specific facts. In Lyons, the investigator went further than gathering the facts and concluded that the employee in question had actually engaged in bullying. In other words, it upheld the allegations against the employee. The employer then accepted the investigator’s findings and invited the employee to a disciplinary hearing to decide on an appropriate sanction. The result was that the employee did not get the benefit of fair procedures in advance of the allegations against him being upheld by his employer.
Recent case law
Two more recent decisions of the High Court support the principle that fair procedures do not apply in full at investigation stage, provided the investigation is limited to gathering the facts, and does not result in complaints being upheld or dismissed.
In EG v The Society of Actuaries Ireland (June 2017), the High Court emphasised that the level of fair procedures required at investigation stage depends on the nature of the investigation. In this case, the Court held that where the investigation could result in disciplinary action, then the person who is the subject of investigation should be afforded the full benefit of fair procedures. However, where the investigation was just a fact-finding exercise and the investigator could not make findings of misconduct or impose sanctions, then less formal procedures may be adequate and appropriate.
A similar approach was adopted by the High Court in NM v Limerick and Claire Education and Training Board (June 2017). There, the Court again drew a distinction between investigations which are fact-finding, and those which go further to make final determinations in respect of allegations. It noted that the principles of fair procedures apply in the final determination of complaints. It, therefore, consequently held that the applicant in question was not entitled to cross-examine witnesses at the investigation stage, where the investigation was an information-gathering exercise only.
The above decisions will be of considerable comfort to employers who were concerned at the potential implications of Lyons. They reinforce the general principle that employees are not entitled to the full range of fair procedures at the initial investigation stage, provided that the investigator does not uphold or dismiss the allegations and/or impose sanctions.
Accordingly, it will very be important for employers to ensure that anyone appointed to carry out an investigation fully understands and agrees the nature and scope of their investigation in advance, so that appropriate procedures may be decided upon and followed.
To learn more about fair procedures, please contact a member of our Employment & Benefits team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.