Changes likely on how internal investigations are managed

Due to a recent High Court judgement, there may be some change coming in relation to how internal bullying investigations are handled. This judgement suggests that employees who are the subject of an internal bullying investigations have the right to legal representation at the internal employer investigation hearings and a right to “confront” or cross-examine fellow employees who may have made allegations against them, where there is a risk of dismissal.

Another aspect of this judgement is that it appears to suggest that this principle should be observed outside of disciplinary hearings, and could arise in non-disciplinary investigations conducted by employers where those investigations could subsequently lead to dismissal.

To date, the LRC Code of Practice on Grievance and Disciplinary Procedures is based the application of “fair procedures” in relation to the disciplinary processes. Fair procedures is not a prescriptive term and is not defined by statute, however the principles in employment processes are derived from case law and the LRC codes of practice.

This new development suggests that, where investigative procedures are invoked that could lead to dismissal, the respondent employee cannot be deprived of a right to legal representation at investigation hearings or a right to cross-examine those who may have made accusations, even if they are fellow employees. This could mean that employees who are the subject of an investigation now may bring legal representation to investigation meetings or, an employee who is the complainant, could now be subject to cross examination by such lawyers during investigation hearings.