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Workplace Investigations

April 01, 2019

The necessity for workplace investigations is ever increasing and can be at times a complex area where fair procedures and natural justice are paramount. A workplace investigation should be an independent and unbiased investigation into a particular issue in the workplace with the aim of gathering relevant evidence to determine whether or not an Employee has engaged in misconduct, or whether or not a specific incident(s) have occurred, or simply to establish facts.

The crux of any investigation is that it is conducted in line with agreed Terms of Reference and is representative of impartiality, fair procedures and natural justice.


When would an investigation be necessary?

An Organisation may choose to initiate an investigation when an incident(s) has occurred that the Organisation may deem potentially inappropriate, or a potential breach of their policies, such as;

  • A complaint against an Employee in relation to performance and / or conduct;

  • A complaint from an Employee / client / customer / third party in respect of the Employee;

  • A complaint of bullying, harassment and / or sexual harassment.


Terms of Reference

The Terms of Reference set out the issues, objectives and scope of the investigation and should be clear and concise. The Terms of Reference should be designed to fit the allegation(s) which have arose and they should consider the following;

  1. Core issue(s) which need to be addressed in the investigation

  2. The investigator’s role and responsibilities and the procedure to be followed

  3. Overall timeframe and interim deadlines

  4. Identifying the task involved and expected outputs (factual report)


Role of the Investigator

An Investigator should conduct the investigation with integrity, fairness, impartiality and respect and report their findings to the Organisation, in line with an agreed Terms of Reference. In employment related investigations, the Organisation should be cognisant of seeking to preserve a good working relationship between the parties and maximise their ability to succeed in the future.


How is an investigation conducted?

Workplace investigations need only satisfy the threshold of the ‘balance of probabilities’. An Employer must utilise fair procedures in the investigation otherwise they may be found to have acted unreasonably. Fair procedures are grounded in the concept of natural justice.

  • The Organisation should appoint an Investigator, this may be an internal person from the Organisation, such as a Manager or a Director, to examine the evidence, and conclude with a finding. The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 states that an external investigator may be necessary to deal with complaints in some circumstances so as to ensure impartiality, objectivity and fairness in an investigation. With this, the Organisation would source an experienced external investigator to conduct the investigation on their behalf.

  • All Employees involved in an investigation must respect the need for confidentiality and a failure to do so may result in disciplinary action. Confidentiality is assured in so far as it is reasonably practicable.

  • Both parties may be suspended with pay, without any negative inference, pending the outcome of an investigation, where deemed appropriate by Management. Careful consideration should be given to this action prior to making any decision to suspend. However, where this is not possible, the parties to the complaint will be expected to maintain a positive working relationship.

  • The investigation will be conducted in accordance with the relevant policy and will be governed by terms of reference which will detail the likely time scale for its completion (an indicative timeframe will be outlined) and the scope of the investigation.

  • The Investigator should meet with the complainant in the first instance to learn more regarding the complaint and to put the alleged perpetrator(s) responses to the complainant (if any).

  • Next, the alleged perpetrator(s) should be invited to a meeting to explore their responses to the complaint and to put any relevant evidence to them.  Evidence should be provided in advance of the meetings in order to allow the Employee to prepare their response to that evidence

  • It may be deemed necessary to conduct more than one interview with either or both parties in order to ensure that the investigator is satisfied that all evidence has been collected and all parties have had a fair opportunity to state their case. 

  • Relevant witness(es) may also be interviewed with a view to establishing the facts surrounding the allegation(s).

  • The parties of the complaint may also have a right to cross examine other parties involved in the investigation.

  • All parties required to attend investigation meetings should be offered the right to be accompanied or have a representative. Based on precedent case law (which is discussed in more detail below), there may be a further right to legal representation at such meetings too.

  • The complainant and the alleged perpetrator(s) should be informed in writing of the findings of the investigation, i.e. whether the complaint is upheld or not upheld. Where a complaint is upheld, both parties should be informed of this outcome, and the relevant level of Management will also be advised.   

  • Management should take appropriate action based on the outcome of the investigation. This may include formal disciplinary action in line with the Organisation’s disciplinary procedure, further training, or another appropriate intervention deemed necessary to prevent a recurrence of the behaviour.


Benefits of Workplace Investigations

Well conducted workplace investigations identify the specific details of an incident by determining what happened, how it happened, and when it happened, if in fact it did happen.


Risks involved with Workplace Investigations

The risks associated with poor investigation practices are significant, and mistakes can expose Organisations to significant financial, legal and reputational risks. Therefore, incumbent on any Organisation is a responsibility to conduct a thorough and fair investigation. Key mistakes that Organisations often make during the course of an internal workplace investigation include:

  • a lack of pre-investigation planning;

  • a poorly drafted, or the absence of a Terms of Reference;

  • combining the investigation and disciplinary steps;

  • relying on “untested” information and ignoring discrepancies;

  • failing to establish a process that is perceived as independent and non-bias; and

  • delay in undertaking an investigation


Recent Case Law - Legal Representation

Up until recently, the legal principles surrounding the right to legal representation in investigation and/or disciplinary processes were relatively clear. The Code of Practice on Grievance and Disciplinary Procedures commissioned by the Workplace Relations Commission expressly outlined that “any person or body unconnected with the enterprise” would be excluded from acting as an employee representative in a grievance or disciplinary process.

Precedent case law [Burns and Hartigan v Governor of Castlerea Prison, 2009] then provided that an employee would be entitled to legal representation in disciplinary proceedings in certain “exceptional circumstances”. The Supreme Court stated that the essential point in determining whether or not “exceptional circumstances” existed was whether or not legal representation was needed in the circumstances of the case, and the Court advised that the following factors should be considered:

  • the seriousness of the charge and the proposed penalty;

  • whether any points of law are likely to arise;

  • the capacity of a particular individual to present his / her own case;

  • procedural difficulties;

  • the need for reasonable speed in making the adjudication, that being an important consideration; and

  • the need for fairness as between the parties.

This precedent case law was then thrown into uncertainty with the High Court’s decision in Michael Lyons v Longford Westmeath, 2017. The Court held that the failure to allow legal representation, on behalf of the Employee, at the meeting was a breach of his constitutional rights and the refusal to allow cross-examination was a breach of fair procedures too. The Court held that the investigation required these as a matter of law and fair procedures as an individual whose job is at stake must be allowed challenge and cross-examine evidence.

Since this judgement, there has been more recent case law on the matter, namely in Irish Rail v Barry McKelvey, 2018. This case involved an appeal by Irish Rail against an order of the High Court restraining Irish Rail from commencing a disciplinary hearing in relation to an alleged “theft of fuel through the misuse of company fuel cards” by the Employee. Mr McKelvey requested to be represented by a solicitor at the hearing and Irish Rail refused this request and stated that Mr McKelvey already had the right to be represented by a colleague or trade union representative, in line with the Code of Practice on Grievance and Disciplinary Procedures. As a result, Mr McKelvey successfully applied to the High Court for an injunction from commencing the disciplinary proceedings until such a time that he was allowed his legal representation.

The High Court decided that the “charges levelled against Mr McKelvey could hardly have been more serious insofar as they put at risk not only his reputation but also his future employment prospects” and “the complexity of the case” too, thus the Court found that he should be allowed his right to a legal representative in this process to ensure he receives fair procerus and natural justice. Subsequent to this High Court decision, Irish Rail appealed the decision to the Court of Appeal and the Court of Appeal implied that the High Court had focused on the first Burns factor (i.e. the seriousness of the charge and the proposed penalty) to the detriment of all others. The Court of Appeal took a broader consideration to the factors and noted that while the allegation(s) in question could have a potential impact on Mr McKelvey’s employment with Irish Rail, reputation and future employment too but there were no factual or legal complexities identified which he would not be in a position to adequately address himself with the assistance of a union representative.


Implications for Employers

Taking the above into consideration, Employers should now be cognisant of all three precedent case laws in this area and the effects thereof when considering carrying out an internal investigation, and particularly the right to legal representation throughout. The decision of the most recent case [Irish Rail v Barry McKelvey, 2018] is a strong endorsement of Burns as the leading authority and re-introduces a welcomed level of practicality to an employment investigation process. The Court of Appeal also gave comfort to Employers who will once again be able to confidently respond to such requests in the knowledge that the Burns test will apply, and indicated in this case that such employment processes should not “ape” court proceedings which we believe can be deemed as further reassurance for Employers too.


Conclusion

Workplace investigations have always been present and although there have been recent changes in the areas, we know that key factors for such a process is to ensure that the Employee is formally made aware of the allegation(s) made against him / her in advance, is allowed to respond to any allegation(s) being made against him / her before any decision is made, is allowed to be represented, the right to appeal any decision made and throughout for there to be an impartial investigator conducting the process. Paramount to such investigations are also the particular circumstances of each individual case being considered while still exhibiting the essential criteria of fair procedures and natural justice.
 

Nonetheless, and more often than not, mistakes made in investigations are the result of a lack of experience and skill on the part of the internal investigator appointed by the Organisation. Any deviation from the requirements under the relevant Codes of Practice or effects from recent case law can call into question the legitimacy of an investigation process which may be to the detriment of an Organisation if it ends up at a Third Party. With that in mind, we strongly recommend that Organisations consider who they appoint as an investigator in such situations and should they feel they do not have an appropriate and experience individual in-house to conduct such a process, then please contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 to discuss how we can assist you.