Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272

Update (21/09/2018): Bláthnaid Evans, Head of Employment at Leman Solicitors, has provided an update entitled 'How has the WRC interpreted Lyons v Longford Westmeath ETB?' one year on from the original High Court decision.

Update (18/01/2018): 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.

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The recent High Court decision in the judicial review application of Michael Lyons seeking to quash a decision of Longford Westmeath ETB will have both lawyers and Human Resource practitioners sitting up and paying very close attention. Although this case concerned the procedures adopted in an alleged case of bullying, the findings of the High Court may have potential ramifications for all processes where employers activate disciplinary procedures.

If you have an interest in workplace disciplinary and grievance issues (and who amongst our readers does not?) you will not wish to miss this in-depth analysis of what is a very important case. So important, that it would appear that the existing Codes of Practice should be amended and updated to accord with the constitutional position on fair procedures and the right of legal representation articulated by the courts.

Introduction

The areas of bullying, harassment and sexual harassment at work are particularly tricky terrain for employers. On the one hand, you have an employee making a complaint against a colleague and that complaint must be treated with the utmost seriousness and properly investigated. On the other, you have the person against whom a potentially serious allegation has been made that may affect his or her continued employment and reputation, and who is therefore entitled to the presumption of innocence and the benefit of due process. In the middle stands the employer, trying to navigate choppy waters and achieve an outcome that vindicates the rights of all parties.

The recent High Court decision in the judicial review application of Michael Lyons seeking to quash a decision of Longford Westmeath Education Training Board will have both lawyers and Human Resource practitioners sitting up and paying very close attention. Although this case concerned the procedures adopted in an alleged case of bullying, the findings of the High Court may have potential ramifications for all processes where employers activate disciplinary procedures.

It has been clear for some considerable time to many working in this area that the view of the courts and the notional standards set out in the array of applicable Codes of Practice put in place by state bodies are far apart, particularly in terms of an accused’s potential right of legal representation at internal disciplinary hearings. This decision serves to further emphasise this disparity. Given that the root of the Courts concern is to vindicate the citizen’s constitutional right to fair procedures derived from Article 40.3.1 and 2 of Bunreacht na hEireann^[1], it is hard to see how these codes as they are currently framed meet the required standards. The consequences for public and private sector organisations the length and breadth of the country are obvious as placing reliance on procedures drafted to ensure compliance with the Codes would appear to be no longer sufficient.

This case is reviewed in some detail below and a commentary follows. In summary, however, the High Court concluded that an investigation into alleged incidents of bullying carried out by an external investigator on behalf of a College administered by Longford Westmeath ETB (LWETB) was in breach of the constitutional right to fair procedures ‘by the refusal to allow legal representatives to appear on behalf of the applicant’ . The subsequent decision by LWETB to adopt the report of the investigator and to summon Mr Lyons to a ‘Stage 4’ disciplinary hearing – a stage that could have potentially resulted in Mr Lyons dismissal amongst other potential sanctions – was therefore invalid and must be set aside.

The Facts

In May 2015, Mr Lyons (the applicant), a deputy principal in a college under the control of LWETB (the respondent), was notified that a complaint of bullying had been made against him by a colleague. The alleged victim requested the LWETB’s Head of Human Resources to conduct a formal investigation into her complaint. This investigation was commenced in accordance with the ‘Bullying Prevention Policy’ for staff in all ETB schools which provided that an external investigator would be appointed (in this case Graphite HRM). The investigation consisted of two separate interviews with the complainant and two separate interviews with Mr Lyons respectively. Statements were taken from three witnesses and a number of letters were also received. The investigator’s final report was issued in March 2016 and concluded that there had been repeated inappropriate behaviour directed towards the complainant by Mr Lyons during the course of employment and that this could be reasonably regarded as undermining her right to work according to the definition outlined in the ETB bullying policy.

On 21 April 2016, Mr Lyons was informed by letter of the investigator’s report and that it was to be adopted by LWETB but that he had 15 days to appeal. His subsequent procedural appeal to the Workplace Relations Commission (WRC) was rejected. By letter of 30 August he was informed by LWETB that the findings of the investigation had been upheld and that he was now required to attend a ‘Stage 4’ disciplinary meeting ‘for the purposes of determining the disciplinary action if any which may arise from the finding of the investigation report referred to above’. Stage 4 of the ETB disciplinary procedure allowed for a range of sanctions to be imposed and these included possible dismissal. This meeting was due to take place on 15 September.

At this point, Mr Lyons solicitor entered into correspondence with LWETB and subsequently with its solicitors. In summary, he objected to the findings of the investigation report being relied upon in the subsequent disciplinary process. He also articulated his client’s right to the benefit of fair procedures stressing that ‘our client is anxious to have all of his rights to fair procedures including challenging the evidence against him and in particular the right to cross-examine his accuser, his right to the presumption of innocence and his right to be advised in advance in writing of the specific allegations against him that are proposed to be the subject matter of any disciplinary procedure’.

In reply, LWETB’s solicitor argued that there was ‘an inextricable and intended link’ between the Bullying Policy and the disciplinary procedure and that in the circumstances ‘our client is now quite entitled to refer the matter to the disciplinary procedure at an appropriate stage’. It was further emphasised that ‘your client has participated in the process to date and has had access to representation and all the relevant documentation throughout’ and ‘that all the work to date should now be set aside to commence a de novo process is entirely intangible and without foundation’. On 7 September, Mr Lyons solicitor applied to the High Court seeking to judicially review LWETB’s decision to convene the Stage 4 disciplinary procedure.

The Decision

In is subsequent judgment of May 5^th, it is clear that Eagar.J was unimpressed with the nature of the investigation stating that ‘an investigation which took a year comprising of four interviews (two interviews with the complainant and two with Mr Lyons) and a number of statements and letters from witnesses did not adequately deal with issues that predated the complaints’. It was also suggested that ‘the report does not set out sufficiently the basis upon which the investigators concluded that the complainant’s right to dignity at work had been undermined’.  In this regard, it might be noted that the investigation only ‘upheld’ four specific allegations of bullying that occurred between January and April 2015, even though the complainant’s allegations of bullying dated back as far as 2008. In passing, it might be suggested in light of the very recent Supreme Court decision in the Ruffley case^[2] that these incidents may not in themselves have satisfied the test of repeated inappropriate behaviour.

The key factor in this decision, however, is the not the Court’s view of the external investigator’s conclusions but the procedures set out in the ETB’s Bullying Prevention Policy themselves. Here, Eagar.J notes that it excludes a legal representative from acting on behalf of a teacher against whom accusations are levelled, even though such complaints may lead to dismissal. He also noted that employers in both the public and private sectors utilise external organisations for such investigations and their processes generally exclude legal representatives from attending on behalf of a client and cross-examination.

He then states the principle that ‘where investigative processes can lead to dismissal, cross-examination is a vital safeguard to ensure fair procedure’ and reviews some case law authorities that demonstrate this. It is perhaps worth noting that none of these authorities are internal employment cases but include a doctor’s fitness to practice enquiry and the seminal constitutional case of ‘In Re Haughey’ (1971) where the procedures adopted by the Dail’s Public Accounts Committee were successfully challenged, in that it heard evidence based on hearsay and did not accord the applicant the benefit of natural or constitutional justice when investigating serious allegations against him.

Arising from this review, he concludes that the procedures adopted by the external investigator were in breach of Article 40.3.1 and 2 of the Constitution and specifically finds that they ‘failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing, whereby the applicant through solicitor or counsel may have cross-examined the complainant. Equally, the complainant ought to be entitled to then cross-examine the applicant (Mr Lyons)’ and reiterates that ‘it is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence’.

Critically, he clarified that if an investigation does adopt constitutional fair procedures, a finding of bullying may amount to conduct of a serious nature and this could lead to dismissal. Thus, it was only the flawed nature of the investigation in the first place that invalidated any potential disciplinary action that might subsequently be taken by LWETB. The Court thus set aside the summoning of Mr Lyons to the Stage 4 disciplinary meeting.

A final point perhaps worth making here is that, rather surprisingly, there is not a single reference in this judgment to the the Health and Safety Authority’s 2007 Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work and the Labour Relations Commission (LRC) 2002 Code of Practice on Procedures for Addressing Bullying in the Workplace, the templates that most employers use to frame their procedures in this area.

Please note that at the time of writing it is not known whether this ruling has been further appealed to the Court of Appeal.

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/e54eea25421c8738802581230045709f?OpenDocument

Commentary

So where does this very significant ruling leave us? The first point to make perhaps is that it hardly comes as a surprise. An amount of the case law of the superior courts in recent decades has emphasised the importance of fair procedures in employment cases.

For example, as far back as 1997, in Maher v Irish Permanent^[3], the High Court found that a Branch Manager accused of sexual harassment by a number of his colleagues was entitled to be furnished with copies of the statements made by those staff members in advance of an oral hearing and that he was entitled to be legally represented at it. It found that his solicitors were given too little notice of this hearing and that the subsequent decision taken following the hearing which neither he nor his solicitor attended could not stand. In Burns and another v The Governor of Castlerea Prison and another^[4] the Supreme Court found that legal representation at disciplinary hearings may be required in exceptional cases where it is desirable in the interest of a fair hearing.

Nor can it be argued that such rulings have not filtered down into decisions made under the unfair dismissals legislation. For example, in Panagopoulou v The West Cork Hotel Ltd^[5] the Employment Appeals Tribunal found that the claimant had been unfairly dismissed because her solicitor had been refused entry at a meeting at which she was dismissed, even though it was accepted that there were clear and documented problems with the claimant’s capacity to do her job and that she had been given a reasonable opportunity to improve.

The response of the State to this jurisprudence has arguably been inadequate and consists mainly of a series of Codes of Practice as follows.

• The Labour Relations Commission (LRC) Code of Practice on Grievance and Disciplinary Procedures 2000^[6], sets out the core principles that must be incorporated into such procedures, but it is now 17 years old. It allows an employee to avail of the right to representation during a disciplinary procedure but, crucially, defines ‘employee representative’ as including a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise.

• Where a formal complaint of bullying is made, both the Health and Safety Authority’s 2007 Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work and the Labour Relations Commission (LRC) 2002 Code of Practice on Procedures for Addressing Bullying in the Workplace^[7] allow a work colleague or employee/trade union representative to accompany the person complained of, if so desired, again suggesting that legal representation is excluded.

• Finally, the most up-to-date Code in this area, the Equality Authority’s 2012 Code of Practice on Sexual Harassment and Harassment at Work^[8], provides that it is essential that the ‘principles of natural justice be adhered to’ but then states that where a formal complaint is made that ‘both parties have the right to be accompanied and/or represented, by a representative, trade union representative, a friend or colleague.’The use of the word ‘representative’ as distinct from ‘trade union representative’ here begs a fundamental question. It is almost as if the drafters knew full well that fair procedures might require a right to legal representation but could not bring themselves to use the words for fear of opening the floodgates.

It is understandable that the prospect of lawyers attending routine disciplinary meetings and hearings in places of employment up and down the country would fill employers, trade union officials, staff and policy makers with dread. It would neither be practical nor desirable. Equally, the prospect of a person making a complaint of bullying or harassment having to face cross-examination would be likely to be a substantial deterrent for many to coming forward, and that would hinder progress in trying to deal with what are acknowledged by all to be corrosive workplace problems. Indeed the finding in this judgment in relation to a right to cross-examine one’s accusers is likely to be the most problematical from an employer’s perspective.

Balanced against this, however, a much greater sense of realism should also be brought to bear. Loss of employment and/or damage to reputation can be catastrophic for the employee accused, and can have far-reaching economic consequences for that person and his or her dependants. Even where an employee is found to have been unfairly dismissed from his or her job, compensation awards under the legislation are low and reinstatement is very rare. Denying an employee the right to be represented at a hearing that adversely affects his or her short to medium term future has serious human rights implications and may also affect the right to work or earn a livelihood into the future.

Ignoring what might be described as the tension between the desire of the courts to uphold personal rights and the need for workplace disciplinary issues to be resolved efficiently will not make that tension go away. The ‘soft law’ approach of a series of Codes has perhaps disguised the extent of this problem. To my knowledge, none of these measures ever benefitted from parliamentary scrutiny in the Houses of the Oireachtas before they were adopted and, to a degree, this may have enabled them to fly under the radar. By contrast, had primary legislation been drafted at some point that effectively deprived an employee from availing of legal representation at any stage of a disciplinary procedure, it may have been cogently argued that such legislation was unconstitutional and must be struck down.

The employment case law authorities affirming a right to legal representation generally concern instances where the dismissal of an employee is potentially at stake or he/she is accused of misconduct which if confirmed might adversely affect his or her reputation. They do not seem to suggest that legal representation must be allowed on every occasion that a disciplinary warning is being considered, such as a verbal warning for minor misconduct or a written warning for poor timekeeping. Nor do they suggest that legal representation must be offered to the employee in question but rather that it should not be excluded by an applicable procedure or refused if it is requested. It is also probably the case that most employees may neither want nor be able to afford legal representation at such hearings. The question of allowing cross-examination of complainants and witnesses is, however, a much trickier problem to resolve.

At the very least it would appear that the existing codes should be amended and updated to accord with the constitutional position on fair procedures articulated by the courts. The option is also there for the government to draft primary legislation that respects the constitutional position while also reflecting a common sense approach that respects the public interest. The expertise of the Office of the Attorney General to advise how this might be done would obviously be essential. Until then, employers would do well to bear in mind that the current Codes of Practice do not adequately reflect the law and that, at the very least, an employee whose job or reputation may be at stake should not be denied access to legal representation if it is requested.