Employment Update: Right to Fair Procedures When Investigating Bullying Allegations
14 June 2017
In general, an employee is not entitled to be represented by a solicitor in an internal disciplinary investigation or hearing. However, in the case of Michael Lyons v Longford Westmeath Education and Training Board , the High Court found that where a complaint is made which could result in an employee’s dismissal, the employee is entitled to fair procedures at the investigation stage. This is even the case prior to any disciplinary process being commenced. This would include the right to confront and cross-examine any witnesses and an entitlement to be legally represented at investigation meetings.
Mr Lyons was notified that a complaint of bullying had been made against him by a colleague. An external investigator was appointed to carry out the investigation. Mr Lyons was invited to submit a written response to the allegations made and to attend various meetings and interviews. At no stage during this process was he afforded the opportunity to cross-examine his colleague. He was also not allowed to have a legal representative present at the meetings and interviews.
A report was furnished to Mr Lyons which upheld certain allegations of bullying made against him. He appealed the findings of the report but his appeal was rejected. He was then advised by his employer that as a result of the findings of the investigation he was required to attend a Stage 4 disciplinary meeting.
Mr Lyons issued Judicial Review proceedings and argued that he had a right to confront and cross-examine his colleague during the investigation. He also submitted that it was clear that, as matter of law and fair procedures, an employee whose job is at stake and against whom allegations are being made is entitled to be legally represented at investigation meetings.
Mr Justice Eagar held that it was quite clear that the investigation was in breach of Mr Lyons’ right to fair procedures. This was due to the refusal to allow legal representatives to appear on his behalf. He stated that the processes adopted by the external investigator failed to vindicate Mr Lyons’ good name because of their refusal to hold an appropriate hearing, whereby he could have, through a solicitor or barrister, cross-examined his colleague.
He found that it is the actual investigation that requires the rights to cross-examination and representation, even before the disciplinary process has started. He ordered that Mr Lyons could not be invited to a disciplinary meeting as the investigation into the complaints made against him was fundamentally flawed.
This case indicates that an employee is entitled to be legally represented and to cross-examine the evidence presented at the preliminary, fact-finding stages of a bullying investigation. Most notably, the employee has the benefit of this right before any disciplinary procedure has formally started. Employers should be aware of the fact that if they do not afford those rights to employees during an investigation, there is a risk that a court could prevent them from proceeding with a disciplinary process against that employee. This is an issue which needs to be taken into account when the terms of reference of an investigation are being considered.
For more information about fair procedures and how this decision may impact your existing HR procedure, please contact a member of our Employment Law & Benefits team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.