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New entitlement to legal representation in bullying investigations?

Employers should take note of the recent decision of Justice Eagar in Lyons v. Longford Westmeath Education and Training Board [2017] IEHC 272 regarding bullying investigations which could have a drastic impact on how employers conduct their internal procedures. It was determined that in circumstances where a complaint is made which could result in an individual’s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to have legal representation at the investigation stage in line with fair procedure guaranteed under the Irish Constitution. Failure to offer this to the employee may result in a flawed investigation and inability to proceed with a disciplinary process.

 

Facts

 

Mr Lyons was notified in May 2015 that a complaint of bullying had been made against him by a female colleague. An investigation was launched into the complaint in accordance with the respondent’s Bullying Prevention Policy. The respondent engaged Graphite Recruitment HRM Ltd (“Graphite”) to carry out the investigation. During the investigation Mr. Lyons was denied the opportunity to cross-examine his accuser.

 

The report produced by Graphite upheld the allegation of bullying made against Mr. Lyons. Mr. Lyons appealed the findings of the report but his appeal was rejected and Mr. Lyons was summoned to a stage 4 disciplinary meeting (where dismissal is considered) at which point Mr. Lyons issued Judicial Review Proceedings.

 

Justice Eagar, in reaching his decision, stated that where investigative processes can lead to dismissal and/or impact on a person’s good name, cross-examination is a vital safeguard to ensure fair procedures. He makes reference to the dicta of Chief Justice Keane’s in Borges v. the Fitness to Practice Committee [2004] 1 I/R. 103

 

“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 procedures requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers.”

 

He goes on to quote to the decision in Maguire v. Ardagh [2002] 1 I.R. 385 in which Justice Hardiman states

 

“Where a person is accused on the basis of false statements of fact, or denied his civil or constitutional rights on the same basis, cross-examination of the perpetrators of these falsehoods is the great weapon available to him for his own vindication.”

 

Justice Eagar having cited the above, held

“it is quite clear to this court that the proceedings adopted by Graphite Recruitment HRM Ltd is in breach of Article 40(3)(1) and (2) of the Constitution of Ireland by the refusal to allow legal representatives to appear on behalf of the applicant. The process adopted by Graphite Recruitment HRM Ltd. failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing, whereby the applicant through solicitor or counsel may have cross-examined the complainant… Equally, the complainant ought be entitled to then cross-examined the applicant.”

 

This was held regardless of the fact that Mr. Lyons did not request legal representation during the investigation.

 

The Court noted that this is the process adopted by many companies when dealing with complaints against employees but went on to state it was

 

“quite clear that the exclusion of solicitors and counsel, and the refusal to allow cross-examination under such policies is a breach of the Constitutional right to fair procedures… The court is clear that in circumstances where a complaint is made which could result in an individual’s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to fair procedures which includes legal representation at the investigation stage.”

 

Other relevant cases

 

It had previously been recognised by the Supreme Court in Burns v. The Governor of Castlerea Prison [2009] IESC 33 that in exceptional circumstances the right to legal representation will exist where a legal representative is required to ensure fairness.

 

More recently, an Intrim Order was granted on the 7th June 2017 by Justice Humphreys preventing Iarnrod Eireann from holding a disciplinary hearing into an allegation of stealing fuel from the company against one of their employees, Mr. McKelvey. Mr. McKelvey denied the allegations and claimed that the company had conducting a flawed investigation. Mr. McKelvey claimed he would suffer irreparable harm and argued the disciplinary hearing should not be allowed to commence on foot of the flawed investigation. Counsel for Mr. McKelvey stated that he had requested the presence of his solicitor or barrister at the hearing in order to cross examine his accusers, however, the company refused.

 

Conclusion

 

Due to this shocking development where rights under constitutional and natural justice are now being applied to a bullying investigation prior to any disciplinary process being initiated, employers need to take care at the outset of any internal investigation and/or procedures.

 

It remains to be seen if this decision will be overturned or if it will be applied in future cases. However, in the meantime it is advisable for employers at the outset of any internal investigations to consider whether or not such investigations will impact on the employee’s good name and/or potentially lead to their dismissal. Where this does arise the employer should consider offering the employee the right to have legal representation present against the risk of the potential consequences of not doing so. Nevertheless, employers should hold off amending policies in this regard until we see if this decision is followed.

 

Anne O’Connell

Employment Law Solicitors

Article dated 15 June 2017

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