by Breda O'Malley June-02-2017 in Employment Law, Workplace Investigations
Employers should take note of a recent High Court judgment regarding pre-disciplinary investigations. In the case of Michael Lyons v Longford Westmeath Education and Training Board [2017] 5 JIC 0513, the High Court held that an individual whose job is at stake and against whom allegations are made is entitled at the investigation stage prior to a disciplinary process to:
- legal representation; and
- to have his solicitor or barrister cross-examine evidence of the witness or the complainant.
Background
In May 2015, Mr Lyons was notified that a complaint of bullying had been made against him. An investigation was launched and conducted by a third party company engaged by Longford Westmeath Education and Training Board.
“Investigation”
Mr Lyons was asked to attend various meetings and interviews and submit his response to same, which he did.
On 04 April 2016, he was furnished with a report from the company that upheld the allegations of bullying. Mr Lyons received a letter from the Longford Westmeath Education and Training Board which had adopted the findings of the investigation. He was also notified of his right to appeal the outcome to the third party investigation, which he did. This in turn was rejected.
On 30 August 2016, Mr Lyons was summoned to a Stage 4 Disciplinary meeting pursuant to Procedures for Suspension and Dismissal of Teachers and Principals (Circular 0071/2014).
Lack of fair procedures
The Court held the investigation was carried out in contravention of fair procedures, on the basis that Mr Lyons was not afforded the opportunity to cross-examine the complainant at any stage of the investigation and had breached Mr Lyon’s constitutional right in the refusal to allow legal representatives at the investigation stage.
The Court noted that the principle of fair procedures guarantees that where an individual’s job is at stake, and against whom allegations are made, that individual is entitled to challenge and cross-examine evidence with the support of a legally qualified person.
Conclusion
This decision indicates that persons against whom serious allegations have been made are entitled to both legal representation and to cross-examine evidence at the investigation stage, prior to any disciplinary procedure.
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About the Author
Breda O'Malley
Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.