The default position in the Workplace Relations Commissions’ (WRC) Code of Practice on Grievance and Disciplinary Procedures is that an employee is entitled to representation which “includes a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise“. There is no reference to legal representation nor is there any reference to cross-examination of witnesses. Then last year following the Lyons v Longford Westmeath Education and Training Board decision (“Lyons”) there was an air of uncertainty among employment practitioners, fearing that legal representation in a disciplinary matter could become the norm.
In Lyons, an external HR company was engaged by the employer, Longford Westmeath ETB to investigate bullying allegations against an employee, a deputy school principal. The outcome of the investigation made a number of findings against the employee. The employer’s Bullying Prevention Policy prevented employees from availing of legal representation during the disciplinary process and didn’t afford them a right to cross-examine their accusers.
Justice Eager held that “Where investigative processes can lead to dismissal, cross-examination is a vital safeguard to ensure fair procedure”. The Court went on to say that “it is the actual investigation that requires the rights to cross-examination and representation, that takes prior to the initiation of the disciplinary procedure”. The Court found the investigation to be flawed and in contravention of the employee’s constitutional right to fair procedures and the findings of the investigative report leading to the disciplinary hearing was ultimately set aside.
The Lyons decision led to much discussion among employment practitioners, particularly in relation to the conduct of workplace investigations: would all workplace investigations effectively become miniature court cases, with legal representatives present? However, on a close reading of the Lyons decision it appears the facts of this case can be distinguished on the basis that it relates to a fact-finding investigation as opposed to a fact-gathering investigation.
Subsequent High Court Cases
Two High Court decisions followed swiftly after Lyons. While they did not refer to Lyons specifically, they confirmed the position that where an investigation is a fact-gathering exercise only, the right to legal representation and to cross-examine witnesses doesn’t arise. In the case of E.G. v The Society of Actuaries in Ireland (“EG”) the investigation made no final decision against the complainant nor were any disciplinary sanctions imposed. In this instance the Court held that there was no obligation to give the applicant an opportunity to cross-examine witnesses when the investigation was done on a fact gathering basis only. The Court noted that “There may be situations in which a stronger degree of procedural protection may be required having regard to the decision to be taken at an investigative stage or its potential consequences.”.
A similar approach was taken in N.M. v Limerick and Clare Education and Training Board (“NM”) where the court held in referring to the right to cross examine witnesses at the investigation stage, that it was “…not satisfied that he is entitled to an oral hearing or an opportunity to cross examine others …”.
Application of Lyons by the Workplace Relations Commission (“WRC”)
Since Lyons, there have been a number of decisions handed down by the Adjudication Officers (AO) of the WRC that have made express reference to the Lyons decision. We summarise some of the key WRC decisions in brief below:
ADJ-00006177: A Credit Controller v An Automotive Parts Distribution Company (20 November 2017)
This case concerned an employee who argued that her redundancy was in fact an unfair dismissal and that the procedures used to implement the redundancy were unfair. The complainant contended that the respondent had not “pro-actively advised the complainant of her alleged right to have a qualified legal representative present at all meetings.” The complainant further contended that this in-turn meant that she was denied the right to cross examine the respondent. The AO distinguished the facts from the Lyons case: “In the High Court judicial review case being relied upon the Complainant, a Mr. Lyons, was at hazard of considerable personal and reputational damage arising from most serious alleged internal employment related allegations and investigations.”. The AO accepted the respondent’s position that the complainant had never requested legal representation and that they had been offered representation in the form of a colleague or trade union representative. In coming to its decision, the AO sought to rely on the Supreme Court decisions in Burns and Hartigan v Governor of Castlerea Prison (“Burns”), which lays out the legal test to determine when legal representation is required and noted, that the requirement for legal representation should be the exception rather than the rule.
ADJ-00006768: A Quality Controller v A Fresh Produce Company (11 January 2018)
This case concerned an unfair dismissal. The complainant argued that he was not advised that he could bring a legal representative to disciplinary meetings. The AO stated that “It is my view that, particularly where a dismissal is contemplated, an employee can only benefit from the support of a solicitor or a trade union representative. In this case however, the complainant did not request any such representation. Regardless of the fact that he was accompanied at meetings by a colleague, if he had had more skilled and robust representation, I am not convinced that a different outcome would have emerged”.
ADJ-00009857: Warehouse Operative v Sales and Distribution (3 May 2018)
Here the AO outlined her agreement that the Lyons decision confirms the right to legal representation and cross-examination will apply in a fact-finding investigation process where there is a prospect of dismissal. While the complainant was not afforded these rights in this matter, the AO was still satisfied that the disciplinary process was carried out in accordance with fair procedure, due process and natural justice. This was on the basis that not only did the complainant seek legal advice before appealing the disciplinary decision to dismiss, the AO also noted that there was no “witness statements of evidence relied upon during the course of the disciplinary process”, which would have warranted the possibility of cross examination. Indeed, this case is a clear example that each individual case should be determined in accordance with its own facts bearing in mind the reasoning and principle behind Lyons and Burns.
ADJ-00009398: Store Manager v Restaurant Chain (7 June 2018)
The respondent employer in this case implemented an investigation whereby the complainant was heard in person and those making the allegations were interviewed separately. The respondent failed to provide the complainant with witness statements or advise the claimant that dismissal was a possible outcome. No disciplinary hearing took place and the complainant was dismissed after the investigation. The complainant was not given any opportunity to be represented or to cross-examine any of the witnesses. The AO referenced the Lyons decision and placed particular emphasis on the right to cross-examine any witnesses, in doing so the AO found that the procedures used in this case was “hopelessly flawed”.
ADJ-00010207: Retail Assistant v Retail Store (2 July 2018)
In this case, the complainant submitted that the respondent’s investigations went beyond a mere fact-gathering exercise. Conclusions were drawn, and adverse findings were made at the investigation stage and before the formal disciplinary procedure was invoked. The complainant was not advised that the investigation could lead to his dismissal. The AO noted how the complainant was not given an opportunity to confront his accusers at the investigation stage, despite the decision of the Lyons case. Given that the complainant was not afforded full and fair procedures at the fact-finding investigation, the AO found that the dismissal was procedurally unfair.
So how should employers conduct workplace investigations following Lyons?
It would seem the WRC is taking a somewhat pragmatic view to the presence of legal representation and the right to cross examine witnesses at an investigation or disciplinary hearing. Thankfully a blanket approach of always allowing such stringent fair procedures present at the investigation / disciplinary stage has not been adopted. Instead the distinction drawn in the Lyons case has been recognised by the WRC noting that such entitlements should only be allowed in limited circumstances. In considering where the balance weighs, the WRC is still giving consideration to the reasoning in both the Lyons and Burns decisions, and how the employer has conducted the investigation process.
To avoid findings of procedural unfairness, employers should remain vigilant when carrying out workplace investigations and should ensure that:
- investigations are limited to fact-gathering exercises with the only conclusion being whether there is a case against the employee that requires the disciplinary process to be invoked. Investigative reports should include a summary of the facts and why the investigator feels there is sufficient evidence to warrant the matter being referred to a disciplinary hearing. Employers need to have clear procedures in place that govern the parameter of the investigation; and
- where the allegations are serious and there is a possibility that the employee will be dismissed (during the investigation or the disciplinary process), this should be made clear to the employee in writing at the outset. While employees do not need to be afforded the right to legal representation and to cross-examine witnesses in all instances, employers should consider each case based on its own facts. If the allegations against the employee are serious and there is a possibility that the employee will be dismissed, then the employer should ensure the investigation stage is conducted on a fact gathering basis only and depending on the particular facts, the employer should give due consideration to allowing legal representation and cross-examination at the disciplinary stage.
  IEHC 272
 Ibid, para 91
 Ibid, para 96
  IEHC 392
 Ibid, para 85
  IEHC 588
  IEHC 76