Richard Grogan: Disciplinary hearings – a seismic change for HR/IR professionals and lawyers
Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on a recent and significant High Court ruling.
Mr Justice Eager’s judgment in Lyons v Longford Westmeath Education and Training Board, delivered on 5th May 2017, is a very significant decision.
I would recommend every employment Solicitor and Barrister who deals with employment law along with all HR and IR Practitioners to very carefully read this decision, and in particular paragraphs 90 onwards.
In this case, Graphite Recruitment HRM Limited conducted an investigation. Mr Justice Eagar held that Graphite Recruitment failed to adopt certain procedures, in contravention of the Dicta of Supreme Court in the decisions which he cited. 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.”
Mr Justice Eagar quoted extensively from the case of In re Haughey 1971 IR217 and particularly the decision of the then Chief Justice on page 264.
Mr Justice Eagar, in paragraph 95 of his decision, stated that it was quite clear to the Court that the proceedings adopted by Graphite Recruitment was in breach of article 40 (3) (1) and (2) of the Constitution of Ireland where the refusal to allow legal representatives to appear on behalf of the applicant.
He went on to hold that the process adopted by Graphite Requirement failed to vindicate the good name of the applicant in their refusal to hold an appropriate hearing whereby the applicant through his Solicitor or Counsel may have cross examined the complainant. Mr Justice Eagar held that fair procedures manifestly indicate that the applicant has a right to confront and cross examine the individual who had made allegations against him.
While this case revolved around a particular procedures, Mr Justice Eagar went on to note at paragraph 97 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.”
Mr. Justice Eagar went on to state:
“It is noted by the Court that this is a process adopted by many companies when referring to not allowing representation by Solicitors and examination and cross examination.”
When dealing with complaints against employees, it is quite clear that the exclusion of Solicitors and Counsel and the refusal to allow cross examination under such policies is in breach of constitutional rights to fair procedures.
This is a significant decision of the High Court.
In our view, it means that in relation to any disciplinary matter where an individual may be subject to dismissal that in those circumstances, the employee will have a right:
- To be represented by a Solicitor or Counsel;
- To call evidence on his or her own behalf; and
- The employee will have a right to cross examine any witness.
What is the effect of this?
Quite clearly, if an employer is going to relying on statements of other employees or any other individual, as part of a disciplinary process, then the employee involved is going to have to be advised of the right to cross examine these individuals. That means that they must be there. They must give their evidence orally and they must be capable of being examined or cross examined. If the employee wishes to have legal representation by way of a Barrister or Solicitor, then the employee is entitled to same. Such individuals would be entitled, on behalf of the employee to examine and cross examine any witnesses.
Going forward, it would appear that any employer who is involved in a disciplinary process which could result in dismissal will have to advise the employee of the right to be legally represented and the right to cross examine any witnesses whose statements or evidence might be taken as part of any investigation.
If the investigation itself is one which starts and could lead to dismissal, then it would appear that the employee would be entitled to be represented at that stage and to examine and cross examine.
If a process commences where, at the start, dismissal is not considered to be an option, but subsequently transpires that it becomes an option, then at that stage the process may have to be stopped, the employee will have to be advised of the right to be represented and to cross examine and it may be necessary for a full hearing to take place in such circumstances.
For those representing employers, it would be important to advise them of this decision.
It would be important that employee handbooks which include disciplinary procedures are reviewed and amended to give this right.
It would be important to ensure in disciplinary matters that the employee is advised of these rights.
There will be a considerable amount of resistance to such procedures having to be adopted. They will mainly arise in respect of employers. An employer running a disciplinary process where a Solicitor arrives may well feel that they are going to have to be legally represented.
This is going to put a considerable cost on employers - however, that is not a relevant factor. These are constitutional rights and the employee is entitled to have those constitutional rights respected.
This decision is going to have significant implications for existing unfair dismissal cases going through the WRC and the Labour Court.
What will be the position if an employee was dismissed and has not been advised of his right to be legally represented and to examine and cross examine witnesses?
In the case in question before the High Court, the employee had legal representation and representations had been made. However, we would be of the view that going forward, if the employee is not advised of the right to be represented and to examine and cross examine witnesses, then in those situations the entire disciplinary process may be tainted with breach of constitutional rights.
- Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.