Investigations & Bullying – Important Caselaw Update
The Supreme Court and High Court have issued three important decisions in recent months that will be of practical importance for employers. The High Court has considered the right to fair procedures during an investigation process, whilst the Supreme Court has issued a decision on bullying in the workplace that helps clarify what constitutes bullying and when an employer might face a liability.
In Lyons v Longford Westmeath Education and Training Board (May 2017) the High Court considered whether an employee is entitled to legal representation and have a right to cross-examine witnesses during a workplace investigation. This was in the context of bullying allegations against Mr Lyons.
Mr Lyons attended meetings with the independent investigators appointed and he submitted detailed written responses to the complaints against him. Two of the allegations of bullying were ultimately upheld and Mr Lyons was invited to attend a disciplinary meeting. He brought a court challenge against the investigation process complaining that the procedures adopted by the investigators did not afford him the opportunity to confront his accuser or challenge by way of cross-examination the allegations against him. He contended that this was unfair in circumstances where his job and his reputation were at stake. The High Court held that where investigative processes can lead to dismissal, cross-examination is a “vital safeguard” to ensure fair procedure. It held that that fair procedures “manifestly indicate” that the applicant has a right to confront and cross-examine the individual who has made allegations. The court held that the exclusion of legal representation and the refusal to allow cross-examination was a breach of the Constitutional right to fair procedures.
In contrast, in the subsequent High Court decision in EG v The Society of Actuaries in Ireland (June 2017), in which Whitney Moore represented the Society of Actuaries, the court identified the obligation upon the Society to “conduct its investigation and consider the allegations in accordance with fair procedures appropriate to the nature of the allegation and each stage of the process”. There may be situations in which a stronger degree of procedural protection is required depending upon the decision to be taken at the investigation stage or its potential consequences. A distinction can be drawn between the standard of fair procedures for an investigation that is in essence information gathering and that applicable to the making of a finding that could lead to the conclusion of a complaint. In the Society of Actuaries case, the court was satisfied that the investigation was an information gathering exercise but also a determination of whether a prima facie case existed in relation to a complaint of serious misconduct. The court concluded that the procedures adhered by the investigating committee were fair, reasonable and proportionate and that a full canopy of rights including a right to cross-examine witnesses was not required.
It is clear the courts will place a high standard upon employers to ensure fair procedures are adhered to when carrying out investigations. The standard that will apply will be directly impacted by the terms of reference for the investigation. It is important that clear and well defined terms of reference are in place at the outset. Employers should seek guidance when carrying out investigations and disciplinary processes, in particular where dismissal is a potential outcome.
Bullying and a flawed disciplinary process
In Ruffley v The Board of Management of Saint Anne’s School the Supreme Court considered primarily whether a disciplinary process, carried out unfairly, is actionable in damages on the basis that it amounts to workplace bullying. The Supreme Court accepted the working definition of bullying as set out previously by the Supreme Court in Quigley v Complex Tooling & Moulding Ltd. For there to be bullying, it must be repeated, it must be inappropriate and it must undermine of the dignity of the employee at work.
The Supreme Court accepted that the disciplinary procedures adopted were defective; it did not accept that there was anything malicious in the manner the procedures were carried out and concluded that even “at their height” the facts of the case did not constitute bullying.
This will be a welcome decision for employers as it confirms that, in itself, a flawed disciplinary process will be unlikely to result in a claim of bullying.