Can Lyons V Longford Westmeath Education And Training Board Already Be Distinguished On Its Facts?

The recent decision of the High Court in the case of Lyons v Longford Westmeath Education and Training Board is being closely watched by employers about to engage in internal investigations. In that case, the High Court held that the right to fair procedures and natural justice (which includes the right to legal representation during meetings and the right to cross-examine witnesses) applies at the preliminary investigation stage where the matter is sufficiently serious that it may warrant dismissal.

It has been generally accepted that the principles of fair procedures and natural justice need not apply to investigations that do not involve any findings of fact, but do apply to inquiries which can make formal findings. In Lyons, a key distinguishing factor may be that the external investigating body issued a report of its findings and formally decided upon the bullying allegation made against Mr Lyons.

Two further decisions of the High Court on the issue of fair procedures during investigations were issued shortly after the Lyons decision. They do not refer to Lyons, but they do reinforce the generally accepted principle that fair procedures do not apply in full at the preliminary investigation stage, assuming the investigation is not the final decision on the allegations, and may provide some support for distinguishing the Lyons decision on the facts particular to that case.

E.G. v The Society of Actuaries in Ireland

The first is a decision of McDermott J in the High Court made on 16 June 2017 in the case of E.G. v The Society of Actuaries in Ireland. This was a case involving an allegation of professional misconduct made against the applicant, a member of the Society of Actuaries in Ireland. An Investigative Committee was appointed by the Society to determine (i) whether there was prima facie evidence of misconduct and (ii) whether to refer the matter to a disciplinary tribunal.

The Investigating Committee found there was prima facie evidence of misconduct by the applicant and referred the matter to a disciplinary tribunal. The applicant argued that the Investigating Committee's finding of prima facie evidence of misconduct and the investigative process generally was in breach of the principles of natural justice and sought an order to set aside the Committee's determination.

Reliance was placed on the judgment of Edwards J in the High Court case of O'Sullivan v Law Society of Ireland [2009] IEHC 632, which was upheld by the Supreme...