Workers facing disciplinary proceedings may be allowed to have legal representation, a Mason Hayes and Curran LLP (MH&C) employment law webinar heard yesterday morning (21 April).
However, this raises the prospect of creating a court setting in a private company, which employers may shy away from.
Codes of practice on disciplinary processes date back to 1980, and while they make reference to cross-examination of accusers and witnesses, MH&C employment law partner Melanie Crowley said that this had not arisen much in practice.
However, in the past two or three years, the right of an accused person to challenge their accuser, or to challenge witnesses, has arisen in some recent cases, after a judge described it as a “vital safeguard”.
Cross-examination is a live issue which is not going away, MH&C partner Gerard Connolly told the webinar.
Codes of practice have been silent on whether an employee has the right to legal representation in an investigation, a disciplinary meeting, or a performance review meeting, though a colleague or trade union representative may be present.
However, more recent codes on bullying go a little further and give a right to representation in line with natural justice and fair procedures.
“They don’t specifically say you can’t bring a lawyer, and because the codes are silent, we have to look at case law,” said MH&C partner Avril Daly.
“If dismissal is a possible outcome of a meeting, then you really should be allowing the employee to bring legal representation as part of their right to fair procedures, if the employee asks for it,” she said.
The ultimate question for employers to determine is whether legal representation is necessary in order to make the process fair, the webinar heard.
If the employee is represented by an experienced trade union official, then a common-sense approach should apply.
“If you do allow a lawyer to attend, be clear about their role in the meeting,” advised Avril Daly.
“Most experienced employment lawyers know that the internal meeting isn't a place for them,” added partner Melanie Crowley.
“If a lawyer attends a meeting, they then become a witness, and it's hard to be a witness and an advocate, if the matter becomes contentious,” she said.
“And it also means that if the lawyer doesn't raise concerns about the process at the meeting, it's very hard for them to do afterwards, so it's not something that I would recommend to any lawyer.”
The webinar’s theme was the top five HR challenges seen by MH&C employment lawyers.
The lawyers noted that, increasingly, where a disciplinary procedure is initiated, the employee will then, in turn, file a complaint against the person disciplining them.
The employee may claim that they are being bullied or being singled out, and that the procedure is another facet of that.
This may cause the original disciplinary procedure to be halted, Melanie Crowley said.
“It becomes very difficult and you end up having to run concurrent processes,” said employment law partner Gerard Connolly.
This adds to the workload, since each process must be tackled by different individuals.
A common HR issue is probing grievances, or bullying and harassment complaints, the webinar heard, and an entire industry of investigatory teams now exists, without necessarily being subject to regulation.
Practitioners may grapple with the results of such investigations, and the question of whether the investigator has to share all of their notes with the person against whom the complaint is made.
The answer is yes, because all investigations have an undercurrent of the right to fair procedures and natural justice.
Employees should have full understanding of the allegations they face, Connolly said, and they have a right to the documentation supporting those allegations.
“This is a very open-book process and an investigator will need to be extremely careful about what’s being committed to writing. There can’t be two sets of notes – an official set and an unofficial set,” he said.
Investigation witnesses have no right to confidentiality, because reports could be tainted by information that is held in private between two people, partner Gerard Connolly pointed out.
No confidentiality in disciplinary process
Organisations should be aware that there is no confidentiality within the disciplinary process, the employment lawyers said.
No participant should expect a ‘dual-track’ process, of available information and a separate stockpile, they warned.
Only experienced investigators should be used, since their work is more topical than the actual disciplinary process.