Workplace investigations are a fundamental component in maintaining good Employee relations. Investigations may arise from grievances, complaints, misconduct, or regulatory issues. Managing investigations correctly is essential for maintaining a productive work environment, avoiding legal liability and minimising the risk of reputational damage.
Adare’s most recent HR Barometer Series 9.1 found that two in five Organisations have conducted investigations in the last twelve months to look into allegations of misconduct, complaints, or misuse of organisational systems. And with the average number of formal disputes experienced by Organisations at 4.6 at a cost of €13,181 per case, there are significant risks at play when it comes to procedural compliance. Given the high incidence of workplace investigations in Irish Organisations, this article examines the most common risks Employers face in conducting a workplace investigation and outlines key steps in managing investigations in accordance with Irish law and HR best practice.
What Triggers a Workplace Investigation?
An Organisation may initiate an investigation when an incident has occurred that is potentially inappropriate or amounts to a breach of workplace policies. Examples include:
- Allegations of misconduct or bullying
- Harassment or discrimination complaints
- Health and safety breaches
- Fraud, theft, or other serious wrongdoing
- Grievances or interpersonal disputes
- Complaint from a client/customer/third party in respect of the Employee
- Protected disclosures
Once an allegation is made, the Employer must be clear on the appropriate response. Organisations will be held to a rigorous standard of fairness in conducting investigations. Not only must Organisations adhere to any relevant statutory provisions, they must also take care to abide by the terms of their own policies.
Depending on the nature of the complaint, the investigation may also need to abide by the standards set out in any applicable statutory code of practice. Bullying, harassment, disciplinary and grievance investigations are all subject to statutory codes of practice.
Risks of Mismanaging a Workplace Investigation
Failing to conduct a proper investigation can have serious consequences. The risks associated with poor investigation practices can expose Organisations to significant financial, legal, and reputational consequences. Key mistakes that are often made during an internal workplace investigation include:
- A lack of pre-investigation planning
- A poorly drafted or total omission of Terms of Reference
- Combining the investigation and disciplinary hearing steps
- Relying on “untested” information and ignoring discrepancies
- Failing to establish a process that is and is perceived to be as independent and non-biased
- Delay in undertaking an investigation
These mistakes are typically the result of a lack of experience and procedural correctness. Where the conclusion is reached that the investigatory process itself was unfair, this is usually to the detriment of one or all the parties involved in the matter.
For many Employers, flawed procedures will only come to light when it is too late to rectify them as the Employee will have referred the matter for adjudication by the Workplace Relations Commission or the Labour Court.
Best Practices for Conducting Investigations
Workplace investigations need only meet the ‘balance of probabilities’ standard of proof. Organisations should ensure, nevertheless that the principles of fair procedures and natural justice apply at every stage of the investigation process.
The following non-exhaustive list of steps may apply depending on the nature of the investigation:
- Appoint an impartial internal investigator or an external investigator.
- Establish if a suspension (without any negative inference) is necessary pending the outcome of the investigation. Careful consideration should be given to this action prior to making any decision to suspend.
- Establish what the Organisation’s own policies require it to do to complete an investigation. Establish terms of reference setting out an indicative timeframe and the scope of the investigation (i.e. establishing facts or gathering information).
- All parties 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.
- 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.
- Next, the alleged perpetrator 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.
- All parties required to attend investigation meetings should be advised of the right to be accompanied or have a representative. In certain exceptional circumstances, an Employee may have a right to bring legal representation to such meetings.
- Investigator meets with relevant witnesses to establish facts or gather more information. Provide both the complainant and the alleged perpetrator with a written report setting out the findings of the investigation, i.e. whether the complaint is upheld or not upheld.
- Where a complaint is upheld, inform both parties and the relevant member of management.
- 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.
When to Seek External Support
There are several scenarios where bringing in an external investigator or consultant is advisable:
- Allegations involving senior management or directors
- Conflict of interest risks for internal staff
- Complex complaints requiring specialist knowledge (e.g., regulatory breaches)
- When impartiality or credibility is essential (e.g., whistleblowing)
- High-risk cases likely to result in litigation or media scrutiny
External investigators bring independence, credibility, and experience in handling sensitive matters in line with legal requirements and industry standards.
Conclusion
Workplace investigations, when handled correctly, are essential tools for ensuring compliance, protecting Employee rights, and maintaining trust in Organisational processes. While Employers face stringent requirements in conducting a fair, transparent, and legally compliant investigations, by following best practice and recognising when to seek external help, people managers and business owners can protect both their workforce and their Organisation.
Would you like to know more about Workplace Investigations or have a potential investigation coming up?
Contact Neil McCormack to discuss how Adare can help.