Kevin Slattery provides up to date and relevant practical advice, in line with these decisions, on how such investigations should be conducted, their place within the overall disciplinary process and the potentially far-reaching implications of Lyons.

1. Can employees cross-examine in internal workplace investigations?
2. Do employees have a right to legal representation at investigations?
3. Can employers limit investigations to fact gathering exercises?
4. Who should conduct the fact gathering/disciplinary processes?
5. How should employers record the content of such meetings?

Q. Are employees entitled to cross-examine accusers in all internal workplace investigations?

The short answer is no, although employers need to tread carefully and correctly manage the scope of investigations, in light of the Lyons v Longford Westmeath ETB decision.

Lyons concerned a workplace investigation, carried out by an external HR company, into allegations of bullying against a school's deputy principal. The outcome of this particular investigation process included "findings" of bullying against the principal. In this case, the principal was subsequently invited to a disciplinary meeting, at which dismissal and/or suspension were expressly set out to be among the possible outcomes. While the principal was afforded the opportunity to submit his written response to the complaints and to attend interviews during the investigation, he was not entitled to cross-examine his accuser nor was he afforded the right to legal representation. He sought to challenge the fairness of the investigation process in the High Court on these two grounds.

In the course of his decision, Justice Eager held that where the investigative process can lead to dismissal, "cross-examination is a vital safeguard to ensure fair procedure". He also held that, given that the findings of the investigator could impact on the principal's good name, he should have been entitled to legal representation during the investigation process.

While the above conclusions are quite broad-ranging and may, at first glance, raise alarm bells in the ears of employers, it is vital that they are read in the context of the specific circumstances of the case. In that case, the result of the investigation was that irreversible and serious "findings" of bullying were made against the principal and the potential outcome was that the principal could have been dismissed.

By way of contrast, two subsequent High Court decisions, E.G v Society of Actuaries Ireland and N.M v Limerick and Clare Education and Training Board each confirmed that the full suite of natural justice rights, including an opportunity to cross-examine witnesses, did not need to be conferred on employees where an investigation essentially amounts to an information gathering exercise. E.G and N.M were issued one month after Lyons and, given the proximity in time to Lyons, do not expressly refer to it. In any event, particular focus is afforded to the necessity to ensure full and fair procedures which may include the right to cross-examine and the right to legal representation – but, crucially, in the context of an investigation that exceeds the parameters of a simple fact-finding investigation.

Therefore, it is not the case that an employee must be entitled to cross-examine in all workplace investigations. Whether or not such a right arises will very much depend on the scope of the investigation and the seriousness of the allegations in issue.  For example, where the investigation goes beyond a mere fact-gathering exercise and makes findings beyond factual findings,  the right to cross-examine may be triggered  - especially where the allegations are very serious, could impact upon the good name of the employee and/or may lead to ultimate sanction of dismissal. Where the investigation remains a simple fact gathering exercise (i.e. taking of witness statements, gathering of evidence) and does not reach findings of innocence or guilt, this right will not arise – even where the accusations at hand are serious.

However, the employee should be provided with the opportunity to cross-examine at the disciplinary hearing stage given that this is the point at which such findings may trigger consequences adverse to the employee.

Q. Our policy does not permit a solicitor to attend an investigation meeting. Only a colleague or trade union representative may attend. Is this lawful?

It is extremely unusual for a disciplinary policy to contain a right of legal representation at the investigation or disciplinary stage.

This 'default' position stems largely from:

1. The Workplace Relations Commissions' Code of Practice on Grievance and Disciplinary Procedures - which provides that employees must be given the opportunity to avail of the right to be represented during a disciplinary process but sets out that this representative "includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise"; and
2. The Supreme Court decision of Hartigan v Castlerea Prison – where the judge cautioned that "legal representation should be the exception rather than the rule" confirming that it is "wholly undesirable to involve legal representation" where there are disciplinary procedures in place.

There are, however, circumstances where an employer should facilitate a request by an employee to be legally represented during a disciplinary procedure, especially where the allegations are serious (e.g. bullying) and could lead to termination of employment. Therefore, employers are advised to pause and consider the potential outcomes of a disciplinary process when dealing with a request by an employee have their solicitor present.

However (as with the right of the cross-examination, above) an entitlement to be legally represented at the investigation stage may arise during an investigation which makes binding findings, per the Lyons, E.G and N.M line of authority.

Q. How can we ensure that an investigation is limited to a fact-gathering exercise?

As can be seen from the above, where an investigation creates binding findings or determinations it will attract natural justice entitlements, such as the right to cross-examine and be legally represented. The reality is that there will be many instances where a very fine line exists between what might be considered fact gathering and making final determinations.

In order to minimise exposure to the suggestion that an investigator has trespassed into the role of the decision maker by making findings, a crystal clear Investigation Terms of Reference document should be drawn up before the investigation commences.  This Terms of Reference governs the parameters of the investigation and should, ideally, include matters such as (i) how the facts may be gathered by the investigator; and (ii) how these facts should be presented within the investigation report.

Q. Can the same person conduct the information gathering process and the subsequent formal disciplinary process?

It is a fundamental principle of natural justice that an employee must receive a fair and impartial determination of the issues within a disciplinary process. The requirement for an impartial determination has generally been interpreted to mean that the decision maker should have no prior involvement or biases in the matter.  While this clearly means that the ultimate decision maker should not be involved in the facts leading to allegations at issue (e.g. be the accuser), it is also taken to mean that the decision maker should have had no prior involvement in the overall disciplinary process. Therefore, if the same individual conducts both the information gathering process (investigation process) and the subsequent formal disciplinary process, it could be open to challenge by an employee from a breach of fair procedures perspective.

Naturally and especially in smaller businesses, it may be difficult to keep the decision maker completely separated from the investigator/investigation process for the duration of a disciplinary process. This reality was acknowledged by Mr Justice Peart in Kelleher v An Post, where he set out that there is no requirement that the investigation officer and decision-maker be "hermetically sealed from each other". He further stated that "it is inevitable that often during an internal or in-house investigation leading to a dismissal, the same decision maker and the investigator may have contact". Thus, some reasonable interaction between these two parties can occur without incurring the wrath of the suggestion of bias.

Equally, there may be instances where a combined fact gathering/disciplinary outcome procedure may be warranted such as in the case of very minor disciplinary issues and where no loss of employment may occur. In these cases, the full rigours of fair procedures may not be necessary or practical.

Ultimately, courts and tribunals will assess the adequacy of an investigation and disciplinary process through the prism of what was overall "fair".

Q. How should employers record what was said and key points discussed in disciplinary investigation meetings to avoid disputes surrounding the content of such meetings?

Ideally, an individual who is not involved in the complaint, as an investigator or ultimate decision maker (e.g. a member of HR) should attend at each investigation and disciplinary meeting as an independent note taker.

These notes can then be provided to the employee and his/her representative, either at the end of the meeting or shortly after it, for comment before the minutes are settled. Where there is a divergence in recall on the part of the investigator or employee, a note may be taken of each party's recollection for completeness. This approach is aimed to maximise transparency.

Note: Legal-Island is running a practical Conducting Workplace Investigations workshop on Wednesday 20th June 2018, Radisson Blu Hotel, Dublin Airport - Only a few places remaining!