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A place for lawyers in workplace disciplinary process?

Monday, July 24, 2017

As published in The Sunday Business Post, 23 July 2017.  A recent court ruling could mean that employees will be entitled to bring legal representatives to all employment investigations.


The High Court recently delivered judgment in the case of Lyons –v- Longford Westmeath Education and Training Board.  While the subject matter of the case (a disciplinary process arising from allegations of bullying) was uncontroversial, the Court made a highly significant ruling in relation to an employee’s right to representation during a disciplinary investigation.


In particular, the Court appears to have given its imprimatur to the proposition that employees are entitled, as a matter of right, to have legal representation during investigations.


If this decision stands (and it is not clear at this stage whether it has been appealed), it carries far-reaching implications.  Put in stark terms, it may mean that employees will be allowed to bring legal representatives to employment investigations as a matter of course.


That has the potential to make these investigations much more involved for employers, to extend their length and to generally place additional burdens on the process.


Prior to the Lyons case, the courts had looked at the question of legal involvement in employment disciplinary processes on a number of occasions. It was generally recognised (in particular, following a decision of the Supreme Court in 2005) that the right to legal representation was the exception rather than the rule.


The Supreme Court ruled that in cases of particular complexity (and/or where the employee might be at a disadvantage in understanding the case against them), legal representation could be permitted.  However, the Supreme Court did not believe that legal representation was necessary in all cases and it is probably no exaggeration to say that cases in which the employee would have difficulty understanding the evidence would be comparatively rare.


Employment law has always recognised the right to representation – this is a core principle of fair procedures.  However, typically – and historically – it has generally been accepted that the right to representation was satisfied by allowing the accused employee to bring a work colleague or, frequently, a trade union representative.


This principle developed over time and was given statutory authority in 2000 in the Code of Practice issued by the Department of Enterprise, Trade and Employment.  This code is generally regarded as the benchmark for fair disciplinary procedures in Ireland.  It does not, notably, mention legal representation.


In the Lyons case, the employee maintained that his right to fair procedures had been contravened because he was not permitted to bring his lawyer to the disciplinary investigation (as opposed to a disciplinary hearing at which a sanction might be imposed).  He maintained that he was unable to challenge the evidence against him – that his lawyer was unable to subject witnesses against him to cross-examination, among other things.  The High Court agreed and ruled that the investigation outcome was unfair in circumstances where the employee didn’t have the opportunity to fully vindicate his position.


The Court ruled that had the investigators permitted cross-examination by the plaintiff’s lawyer (and allowed legal representation generally), the procedure would likely have been fair.


The implications for employers are potentially immense.  While there is no doubt that disciplinary matters are significant and can carry grave consequences for employees (up to and including dismissal from employment), it is debateable whether it is desirable that employment disputes should effectively become “mini trials”.


If this line of authority is followed, and employees regularly instruct lawyers to represent them during disciplinary investigations, employers may be faced with lawyers on the opposite side of the table on a regular basis.  That’s not a prospect to be relished.  Apart from anything else, employers, in turn, may need to seek legal advice (or representation) on a regular basis.  Processes that ought to be reasonably straightforward may become complex and drawn-out.


Of course, it is possible that the floodgates will not open and that legal representation will only be necessary in acute cases.  Certainly, that appears to be a core principle in the Lyons judgement – there is no doubt that the court was particularly exercised given the possibility of Mr. Lyons being dismissed and/or suffering damage to his reputation – risks that won’t automatically arise in all disciplinary procedures.


The judgement doesn’t necessarily mean that low-level disciplinary incidents require legal representation.  Still, it’s not necessarily an easy line to draw and however you look at it, the development is an unwelcome one for employers.


Employees already benefit from a wide panoply of fair procedures and it is legitimate to question whether it is absolutely necessary for them to involve lawyers as a matter of course in disciplinary matters.


Patrick Walshe