Caveat Employer: Allegations of Bullying Lead to Review of Fair Procedures in Pre-disciplinary Investigations
An employee has successfully challenged the manner in which his employer conducted an investigation into allegations of bullying made against him by arguing that his right to a fair procedure was not recognised.
The recent High Court decision of Lyons v Longford Westmeath Education and Training Board1 has put both legal advisors and employers on notice of a potential overhaul of the rules governing internal procedures in the workplace when instigating pre-disciplinary investigations against an employee into allegations of bullying.
Mr. Lyons, a deputy school principal, argued in the High Court that a fair procedure to which he claimed he was entitled to receive when allegations of bullying were made against him was not in place during the fact-finding stage of an investigation into the allegations.
Case facts and background
A pre-disciplinary investigation was launched when allegations of bullying were made against Mr. Lyons. His employer instructed a third party HR consultant to carry out the investigation on its behalf.
The finalised report upheld the allegations of bullying made against him. Mr. Lyons disputed the findings made in the report and submitted an appeal but his appeal was rejected. This rejection resulted in him issuing Judicial Review Proceedings against his employer, in order to have the 1 Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 pre-disciplinary procedure reviewed. In finding for the applicant, Mr. Justice Eager held that;
“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 crossexamine, by counsel, his accuser or accusers”.
He further ruled, having cited the judgement of Mr. Justice Hardiman in an earlier case2 , that the investigative proceedings adopted in Mr. Lyons’ case were in breach of his Constitutional rights afforded under Article 40(3) (1) and (2), as;
(1) a “refusal to allow legal representatives appear on behalf of the applicant” coupled with
(2) a refusal to allow the applicant crossexamine or challenge any evidence used against him, failed to give Mr. Lyons any opportunity to vindicate his good name since the right to a fair procedure was not upheld.
Furthermore Mr. Justice Eager applied principles set out in earlier case law3 and found that Mr. Lyons was not to be subjected to any disciplinary proceedings relating to this matter.
Parallel proceedings
Interestingly, this case is not alone in highlighting the importance of vindicating the right to a fair procedure. In a similar case, Barry McKelvey, an employee of Iarnród Eireann, successfully brought an injunction against his employer.
Mr. McKelvey argued that his right to a fair procedure was not vindicated during the investigation stage into allegations of theft as he was refused the right to be accompanied by his legal representatives 4 . Mr. Justice Humphreys granted a temporary court order against Iarnród Eireann preventing it commencing disciplinary proceedings against Mr. McKelvey when Counsel for the applicant argued that as Mr. McKelvey’s request to have legal representation at the investigation stage was denied, the scheduled disciplinary proceedings should not take place.
Employers – Note of Caution
The implications for employers of the decision by Mr. Justice Eager are potentially far-reaching. Adherence to fair procedures can now stretch to the accommodation of legal representation and cross-examination of evidence at predisciplinary investigations, depending on the allegations in question or on the facts of the case.
Additionally, existing internal policies and procedures governing pre-disciplinary investigations should be reviewed by employers and may need to be amended in order to ensure that no such allegations of unfair procedure can be brought against an employer during fact-finding predisciplinary investigations.
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References:
1 Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272
2 Maguire & ors -v- Ardagh & ors [2002] IESC 21
3 In re Haughey [1971] I.R. 217, Borges -v- Fitness to Practice Committee & ors, [2004] IESC 9 and E.E -v- Child and Family Agency [2016] IEHC 777
4 McKelvey -v- Iarnród Eireann Irish Rail
