Disciplinary Policies and Procedures should clearly state that employees have a right to representation, usually a work colleague or a trade union representative. However, are there cases where an employee is entitled to invite a solicitor into the workplace to represent him; and can the employer object?
Previous Supreme Court Determination
In the Supreme Court case of Alan Burns and Another –v- The Governor of Castlerea Prison and Another  IESC 33 delivered 02/04/2009 the Court stated that, while there was no automatic right to legal representation there were exceptional circumstances when an employee was entitled to such representation. When determining if ‘exceptional circumstances’ exist, one should consider:
•The seriousness of the charge and of the potential penalty;
•Whether any points of law are likely to arise;
•The capacity of a particular disciplinee to present his own case;
•The need for reasonable speed in making the adjudication, that being an important consideration;
•The need for fairness as between the parties.
Disciplinary Dismissal Hearings
While the above “exceptional circumstances” principles give some guidance, some more certainty has been reached as a result of the recent High Court Determination in the case of Michael Lyons v Longford Westmeath Education and Training Board  5 JIC 0513 delivered on 05/05/2017.
The employee had challenged the Disciplinary proceedings initiated by the employer against the employee in a Judicial Review application to the High Court. The employee contended that the employer had carried out the investigation of a complaint containing allegations of bullying in contravention of fair procedures. The employee alleged that there was objective bias as the Chief Executive of the employer merely adopted the findings made by the private company hired by the employer to carry out the said investigation without adhering to the prescribed procedure.
The Court`s Decision
Mr. Justice Eagar held that the Investigation conducted by the private company hired by the employer was in breach of the constitutional right of fair procedures. The Court set aside the summoning of the employee to a Stage 4 disciplinary meeting. The Court held that the Chief Executive had no constitutionally sound basis to hold the disciplinary proceedings in accordance with the relevant circular. The Court observed that the employee was entitled to challenge and cross-examine the witness and seek the assistance of solicitors in accordance with the principle of natural justice but the employee was denied that right. The Court observed that there were serious procedural lapses in the manner the investigations were conducted by the private company. The Court found that the complaints of bullying were often resolved by an informal procedure and the employer had bypassed that procedure in contravention of fair procedures.
Principles adopted by High Court
Mr. Justice Eagar mentioned a number of cases. One of these was Borges v The Fitness Practice Committee 2004 1 IR 103, where Keane CJ stated:
“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 procedure requires that he or she should be allowed to cross examine, by Counsel his accuser or accusers. That has been the law since the decision of this Court In re: Haughey 1971 IR217 and the importance of observing that requirement is manifestly all the greater where, as here, the consequence of the Tribunals finding may not simply reflect on his reputation but may also prevent him from practicing as a Doctor either for a specified period or indefinitely.”
While this case revolved around a particular Department of Education procedures in place, Mr Justice Eagar very importantly went on to note at paragraph 97 of his Judgment that:
“It is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence.”
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. Up to this many employers running Disciplinary Investigations have assumed that it is sufficient to simply gather Statements from witnesses and present them as a case against the employee under investigation. The employee up to this has been obliged to accept these Statements at face value. Now however, as a result of this Decision, the witnesses must give their evidence orally and they must be capable of being examined or cross examined by a Solicitor or Barrister.
Employers must be very careful in the future, where the Investigation and Disciplinary procedure are likely to result in the Dismissal to ensure that the employee is advised of his right to legal representation and to cross-examine witnesses in relation to Statements given. If the employee is not given such access to legal representation and cross-examination this in itself, regardless as to the substantive case, could lead to a finding that the Dismissal was unfair. There may also be cases where the employee will be entitled to apply to the High Court by way of Judicial Review to seek to prevent a Disciplinary Hearing proceeding where the Investigation has not been carried out in accordance with these principles.
This could be a very expensive problem for an employer. Employers should take legal advice before they embark on a Disciplinary process. Likewise, an employee should seek immediate legal advice where he believes that he is likely to be dismissed as a result of a Disciplinary process.
Morgan McManus Solicitors
Ph. No.: 00353 47 51011