Following on from my blog post on Tuesday I now propose to look at some of the areas which trouble employers most in this difficult area. Before looking at some of the practical problems which can arise, we are frequently asked whether legal representation is permitted during workplace and other investigations and in what circumstances.
Needless to say there is a wealth of caselaw in this area.
In 2006 in Garvery v the Minister for Justice Equality and Law Reform ( 1 I.L.R.M. 486 the Supreme Court noted that there could be no automatic right to legal representation but that the requirement of fair procedures may include an entitlement to legal representation.
In Burns and Hartigan v The Govenor of Castlerea Prison and the Minister for Justice, Equality and Law Reform (unreported March 16 2005) the High Court allowed prison officers to be legally represented due to serious accusations being made against them and the resultant potential penalties.
In the case of Aziz v Midland Health Board ( ELR 48) the High Court held that there was no general right to legal representation at a quasi judicial hearing as the issues to be investigated raised simple questions of fact.
In Flanagan v University College Dublin ( I.R.731) a student was accused of plagiarising an essay which resulted in her appearing before the college’s disciplinary committee. She was refused representation before the committee and subsequently appealed to the High Court to judicially review the decision. The High Court concluded that she should have been entitled to be represented given the seriousness of the matter and the impact of any adverse decision on her future.
In O’Neill v Iarnrod Eireann ( E.L.R. 1) the plaintiff was dismissed by a disciplinary committee. He was permitted to be accompanied at the hearing by a fellow employee or trade union representative as set out in his employer’s policies but claimed he should have been permitted legal representation. The Supreme Court held that as he was allowed a limited form of representation, the failure to permit legal representation was not a breach of natural justice.
From the case-law above, employers can find themselves, depending on the nature of the investigation, uncertain how to proceed. On a practical note, if one side is allowed legal representation then it naturally follows, that the other side should equally be afforded the same opportunity. Of course the danger is that the process becomes overly legal and therefore it is extremely important to set out at the outset the parameters of any legal representation i.e. observance of fair and natural justice being carried out as opposed to a right to cross-examine etc.
In general, where investigations may lead to possibly dismissal of an employee, it may be prudent to permit legal representation if only to ensure that the lawyer can observe procedures undertaken however if an organisation decides not to allow this then in the very least the investigation should ensure the following basic principles are strictly adhered to:
- The employee is informed immediately of the nature of any complaint being made against him/her and is furnished with a copy of any written complaint as soon as reasonably practicable;
- The employee is given a full opportunity to respond to any allegations being made against them;
- The employee is informed of their right to representation whether by trade union representative or otherwise;
- A suitably experienced investigator whether internal or external is appointed
- The terms of reference outlining the parameters of the investigation are drafted as soon as possible and furnished to all parties to the investigation process.
We will revisit these principles in our next blog post, As always we welcome any feedback on problems encountered in your organisation!