The right to cross-examination as part of fair procedures during an internal dignity at work investigation was upheld in the controversial case of Lyons v Longford Westmeath Educations and Training Board [2017] IEHC 272.

This case considered the procedures applied in an investigation into an allegation of bullying. This investigation was carried out by an external investigating body, which made findings in relation to certain allegations. The High Court decided that an employee subject to a preliminary investigation has the right to cross-examine his/her accuser and any witnesses at the investigation where the matter is sufficiently serious that it may warrant dismissal. This decision was made in circumstances where findings were being made against the employee at the investigation stage. Had the investigation been categorised as an information gathering process rather than one that made findings of fact, the right of cross-examination would not have arisen. If the investigation is a preliminary step and the investigator does not have the power to make findings or impose sanctions, but is simply gathering information to determine if there is a basis for a disciplinary hearing, then the employer is not required to comply with request for full fair procedures, including a right to cross-examine.

The right to legal representation at investigation and/or disciplinary hearings was considered by the Court of Appeal in Íarnrod Éireann/Irish Rail v Barry McKelvey last October. The court confirmed that at any hearing where findings will be made against an employee, the following considerations determine whether the employee is entitled to legal representation:

  1. The seriousness of the charge and the potential penalty;
  2. Whether any points of law are likely to arise;
  3. The capacity of an employee to present his/her own state;
  4. Procedural difficulty;
  5. The need for reasonable speed in making the adjudication; and
  6. The need for fairness between all of the relevant parties.

In summary, legal representation can be limited to exceptions cases only. However, there can be advantages to agreeing to such requests on a case-bycase basis. Employers are advised to review their investigation and disciplinary procedures in light of these developments to limit the extent to which full fair procedures must be afforded to employees during such processes.

Walkers has extensive experience guiding employers through contentious investigations and disciplinary processes. Our aim is to help you to manage the risks and reach outcomes that work best for your particular business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.