Show Notes
Episode 26 – Are employees now entitled to cross-examine witnesses and to have legal representation at the preliminary investigation stage of a disciplinary process?
In this latest episode of the Matheson Employment Law Podcast Series, Bryan discusses a recent decision of the High Court which has held that employees are entitled to both the right to cross-examine witnesses and the right to legal representation at the preliminary investigation stage. Depending on how you interpret earlier case law in the area of fair procedures, as identified in the case itself, this may not be seen as such a striking legal development. However, in terms of actual HR and employment law current practice, it is a very significant development and will require the majority of employers to adapt their practices to allow for both cross examination and legal representation at disciplinary investigation meetings, as well as potentially other aspects of fair procedures also.
The decision is expected to lead to added complexity, delay and expense for employers in running internal investigations. For the very same reasons, it is being closely watched by employment lawyers and employers alike as to whether it will become the “new norm” or if it will be quickly disregarded as an outlier judgment distinguished on its particular facts. In the interim, we are already seeing some employers hold off on making any changes on foot of this decision and taking the risk on this, rather than concede this point straight off. The next episode in this podcast series will deal with two other recent decisions which address this point and which arguably qualify the point being established in Lyons.
Bryan also discusses updates on mandatory retirement ages and the positive impact for employers in the Supreme Court decision on what constitutes bullying in Ruffley v Board of Management of St Anne’s School.
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