PLEASE NOTE: Since the Lyons v Longford Westmeath ETB decision, Mr. Pat Breen, T.D., Minister of State for Trade, Employment, Business, EU Digital Single Market and Data Protection has asked the Workplace Relations Commission and the Health and Safety Authority to undertake a review of their codes of practice on bullying in the workplace. The WRC Code dates from 2002 and the HSA Code has been in place since 2007.

Presumably we can expect the new Codes to reflect the ruling in Lyons v Longford Westmeath ETB and subsequent cases in relation to the right to legal representation and to cross-examine witnesses.

All professionals operating in the employment law field were somewhat surprised by the High Court decision at the beginning of the summer in Lyons v Longford Westmeath Education and Training Board[1]. In this case, the High Court held that where dismissal or an adverse impact on reputation are potential outcomes of an investigation, the employee should be afforded:

(a) the right to cross-examine his accuser; and

(b) the right to be legally represented.

Up until then, it had generally been thought that unless otherwise set out in an employer’s procedure, rights of this nature might only arise at the disciplinary stage in a process, and in circumstances where dismissal was the likely outcome.

As such there has been much discussion in employment law circles in relation to investigations and fair procedures.  In particular, discussions have focussed on the challenge of differentiating between an investigation which is an information-gathering exercise, and one which could result in a final determination or sanction for an employee. It’s the latter type of investigation which attracts the rights mentioned above, according to Lyons.  This was quickly followed by another case in June 2017, NM v Limerick and Clare Education and Training Board[2].

The WRC, in considering a case after Lyons in August 2017 (A General Operative v A Manufacturing Company) specifically commented that the principles of natural justice must be applied by an employer in the policies and procedures it applies to an employee’s employment and dismissal. The Adjudication Officer said that “this requires that fair procedures are applied, not perfect procedures. As stated by Barrett J in Boyle v An Post [2015] IEHC 589 “fairness is ever required, perfect is unattainable””.

While this gave some comfort to practitioners and employers, the High Court decisions still stand in regard to the potential for the rights of cross examination and legal representation to apply at investigation stage, depending on the nature of the investigation. Any employer embarking on an investigation should be careful to consider the potential implications of this. If an employee requests a right of cross-examination of witnesses and/or legal representation during the investigation, and the investigation cannot be definitely said to be a pure fact-finding (or information gathering) one, such rights may arise.

While not directly linked to those specific points, two recent cases from the Labour Court on fair procedures are of interest.  As they are recommendations under the Industrial Relations Acts 1969, they not legally binding on employers.  They are however, indicative of the view which will be taken by the Labour Court when looking at the fairness of investigative procedures.

The Labour Court: Dublin City Council v A Worker (Labour Court 31 August 2017)

The Claimant in this case alleged that he had not been afforded due process and fair procedures, when his appeal against an internal decision failed. The investigation in this case was on foot of a complaint against the employee that he had threatened a colleague in the course of his work. The Council investigated this complaint, and appeared to have made a decision that it was well founded. It then purported to apply what was contended to be a severe (but unidentified) sanction on the employee. This finding and sanction were upheld on appeal. The matter was then referred to the Labour Court under the Industrial Relations Acts, and both parties agreed to be bound by the recommendation. The Labour Court found that standards of fair procedure had not been complied with in the case, and fell short of those required in a case in which grave allegations of threats against a colleague were made. In particular:-

1. The Council admitted that the “decision-maker” in the process had no power to make a decision, and was making a “recommendation”. The Claimant was not aware of this, and was mistaken as to the outcome and findings of the investigation and disciplinary procedure.
2. Furthermore, the Council confirmed that it had treated the Complainant differently to other employees by refusing to engage in the normal Industrial Relations dispute resolution procedures, because the employee had a history of bringing grievances to the Labour Court.

Firstly, it seems very strange that the Claimant’s confusion as to the status of the recommendation of the investigator could not have been clarified on appeal, and indeed, why would an appeal have been required or permitted if the outcome was a recommendation only?

The Court directed that the outcome of the procedure be set aside due to the unfairness of the process. However, it did also direct that the complaint of threatening behaviour be re-investigated by an independent person without involvement in the matter to date. As such, the employer was given an opportunity to mend its hand in relation to its process, which is not always permitted or indeed practicable.

Zehnacker Ireland Healthcare v A Worker (The Labour Court 10th August 2017)

Readers may recall the employer name from the infamous ECJ case under the Acquired Rights Directive Ayse Suzen v Zehnacker Gebaudereinigung in 1997 on transfer of undertakings. The case under discussion was closer to home, and involved the Irish company. Again, the Labour Court considered a management led investigation, which was found to be fair.  It started when an employee made serious allegations against a colleague, but did not want to invoke the Dignity at Work policy. The employer took the view that given the seriousness of the complaints, they should be investigated.  This is a query which is frequently raised with employment lawyers – whether an employer should embark on an investigation in the absence of a formal complaint by an employee. The Labour Court upheld the employer’s decision to do so in this case, but employers should proceed with caution, and commence investigations which are not grounded on formal complaints in very serious circumstances only.  It is further recommended that the discretion to do so is included in dignity at work policies.

Eleven staff members were interviewed and the employee was given a copy of the allegations and statements. After a disciplinary hearing he was issued with a final written warning. The employee did not deny the subject matter of the complaints (that he had made racist and culture based comments to his colleague) but contended that he had not meant to offend or insult his colleague and they were based on “banter” in the workplace. This is a common defence in these situations.

The Court agreed that based on the complaint made (whether formally or informally) it was incumbent on the Company to carry out an investigation, to ensure that the behaviour would not be repeated. It was also quite critical of the employee’s submission that the comments constituted “workplace banter”. The Court found that the Company exercised its duty of care to its employees in ensuring a work environment free from harassment, by initiating the investigation into the matter and acting promptly in the exercise of its duty. In the circumstances, the disciplinary action taken against the Claimant was not unreasonable. The Court supported the action and sanctions taken by the Company and did not uphold the contention that the process lacked procedural fairness.

Why are these cases important to Irish workplaces?

As can be seen from the developments over the summer in case law involving investigations, employees are continuing to challenge workplace procedures at even earlier stages.  While the courts and WRC will consider these challenges, employers can be comfortable that provided any investigation is purely an information gathering one, it should not (unless otherwise provided in a procedure) attract the full ambit of fair procedures which would apply in a disciplinary process likely to result in dismissal. The Labour Court cases discussed, while not legally binding on other employers, give a good insight of the position which will be taken by the Labour Court regarding procedural fairness overall. The Zehnacker case in particular, confirms that if an employer considers an issue serious enough, they may be justified in proceeding to investigate without a specific formal complaint. It seems that both judicial and Industrial Relations guidance and assistance will continue to be sought by employees earlier and earlier in processes where up to now, the courts might have been reluctant to interfere. As such, employers should ensure that their policies and procedures pertaining to investigations/procedures are comprehensive, and also, that the scope of any investigations are carefully thought out, to avoid any procedural challenges by employees.

Mr. Pat Breen, T.D., Minister of State for Trade, Employment, Business, EU Digital Single Market and Data Protection announced that he has asked the Workplace Relations Commission (WRC) and the Health and Safety Authority (HSA) to undertake a review of their Codes of Practice on Bullying in the Workplace. The WRC Code dates from 2002 and the HSA Code has been in place since 2007.

The Minister’s initiative comes about as a result of evolving case law in this area that has brought these issues to the fore. Presumably we can expect the new Codes to reflect the ruling in Lyons v Longford Westmeath ETB and subsequent cases in relation to the right to legal representation and to cross-examine witnesses.