For the purpose of today’s article, I will briefly focus on disciplinary procedures as this is an area in which employers most often come into difficulty and furthermore is the area where there is the greatest potential liability from an employer’s perspective. Also, this is a topic in which some serious considerations were raised for employers following the Judgement in Lyons v Longford Westmeath Education and Training Board  IEHC 272.
The background to the abovementioned case is that an external investigator was appointed by Mr Lyons employer to investigate a bullying complaint which had been made against him. The High Court noted that the process implemented during the investigation (separate meetings and the taking of statements without cross examination) is one which is routinely adopted by many companies but went on to state that “the exclusion of solicitors and counsel, and the refusal to allow cross examination … is a breach of the Constitutional right to fair procedures.” This represented a departure from previous case law in that it apparently extended the right to legal representation to investigation meetings and further it extended rights to cross examine witnesses. In essence, on the face of it the Decision in Lyons means that once an employer engaged in an investigation of a serious matter that could ultimately lead to a dismissal, then every employee involved would be entitled to bring a lawyer to each investigation meeting and, not only that, the lawyer must have the opportunity to cross-examine each witness who is saying something about his/her client.
As alluded to above, the decision in the Lyons Case represented a departure from previous case law in that the Supreme Court had previously ruled that the right to legal representation could only arise in certain circumstances or where required by the principles of constitutional justice. Furthermore, prior to the Lyons Case, 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 there were circumstances in which it could be circumvented, i.e. if alternative methods could be established so as to allow accused employees challenge the evidence against them. For example by the placing of questions through the investigator and/or the person charged with a disciplinary hearing.
Following the Judgement in Lyons, there have been two subsequent cases, E.G. v. The Society of Actuaries in Ireland and N.M. v. Limerick and Clare Education and Training Board, which have rowed back somewhat on the more radical position as put forward in the Lyons case. The key principle in both the aforementioned cases is that so long as an investigation’s purpose is to form a preliminary view, where reasonable and proportionate fair procedures are permitted at that stage and full rights to fair procedures and natural justice are afforded at the disciplinary stage, then less formal procedures are appropriate at the investigation stage and, in particular, it is reasonable that cross-examination will not apply. Therefore, the effect of the Lyons Case may not be as far-reaching as was initially thought to be the case. Nevertheless, employers should expect for it to be referred to by employees who are facing disciplinary procedures.
One thing that is clear from the Lyons case and indeed the other cases listed above is the importance from an employers perspective of ensuring that the principles of natural justice and fair procedures are applied. What is entailed in this regard may vary somewhat on a case by case basis but the following key fundamental principles should be remembered:
- The employee must be aware of what is expected from them and the consequences of shortcomings. The foregoing emphasises the importance of having proper policies in place. A case which emphasises this point is Harris v PV Doyle Hotels [UD150/1978] where an employee was successful in an unfair dismissal claim after he was dismissed for drinking on the premises because the company had not made employees sufficiently aware that this would result in summary dismissal.
- The employer must determine all allegations against the employee. In general, this requires an investigation to be undertaken. Prior to any such investigation, employees must be put on notice (in writing) of the allegations they are facing and in the course of the investigation the employee must be furnished with all documentation relied upon and must be given a chance to provide an explanation. As referred to above, the issue of cross-examination will have to be considered in this regard.
- The purpose of the investigation should be to establish the facts and decide whether a matter should proceed to a disciplinary hearing. It is important that an investigation does not extend beyond this remit.
- Once the investigation has been concluded a separate person should be appointed to deal with the disciplinary hearing.
- The employee should be allowed the opportunity to bring representation to both the investigation and disciplinary meetings. Statutory Instrument No. 146/2000 sets out that representation in this regard includes a work colleague and a union representative. However and as discussed above, there is some case law which sets out that if dismissal is contemplated then this could entail legal representation. Therefore, depending on the circumstances of each case employers should consider whether to allow legal representation or not. It appears that the Lyons Case can be somewhat limited to its facts and that legal representation will remain an exception rather than the norm but this remains to be seen. One practical point to note in this regard is that it may often be better for employers to allow legal representation as it negates any argument that can be made regarding appropriate representation and the role which solicitors can play at such meetings is often very limited as they can only make representations on behalf of their clients and cannot answer any direct questions, etc.
- In a scenario where a disciplinary sanction has been issued the employee must also be allowed a right to appeal and the appeal again must be heard by a person who is not involved in the earlier investigation or disciplinary meeting.
The steps as set out above are basic principals which employers should follow when initiating a disciplinary process and the above steps must be taken against a backdrop of reasonableness on the Employer’s part. The fact of the matter is that if the above steps are not followed and the disciplinary procedure applied results in the dismissal of employees then such employees will succeed in a claim for unfair dismissal against their employers. When one examines the decisions being issued by the WRC and the Labour Court and prior to the EAT a recurring theme is that employers very often fall foul of the law even in circumstances where the employee’s behaviour justified dismissal. The reason for this is that Employers in question have not adhered to the steps as set out above and have dismissed the Employee in a procedurally unfair manner.
Purdy Fitzgerald Solicitors