• Workplace Investigation

Workplace Investigation

Examining and reporting on a specific employee issue or accusation. We focus on the human element. 

Our Workplace Investigation (Independent Disciplinary Investigations) procedure involves examining a specific human relations issue or accusation, investigating any connected matters and reporting on the findings. Our process is focused on fact-finding while treating all participants with respect and professionalism.

Recent case law has been very strong in this area and employers are well advised to be very structured in their approach into disciplinary investigations. Workplace investigations are subject to the same on ‘balance of probabilities’ threshold as civil law and do not need to be proven beyond reasonable doubt. However, it is critical that an employer must utilise robust, clear, comprehensive, documented, fair procedures in any investigation otherwise they may be found to have acted unreasonably.

Investigators are often appointed from a management layer in the organisation (manager, senior manager or director for example) and they are charged with conducting the investigation, examining the evidence and reaching a conclusion. However, to ensure objectivity, impartiality and fairness in a workplace investigation, 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.

Where the employee’s role is potentially at risk (“sanctions up to and including dismissal/termination of employment”) or the investigation could have a negative effect on the reputation of the employee then the case of “Michael Lyons V Longford Westmeath Education and Training Board”  should be considered.  Failure to follow perfect processes by overstepping the mark on the initial investigation when it issued a report and conclusions rather than simply stating the facts, and failure to afford legal representation and cross examination opportunities to the employee led to a negative outcome for the Employer. N.M. v Limerick and Clare Education and Training Board - the High Court held that, that the applicant was not entitled to cross examine witnesses as the investigation could not make findings of fact which were final or binding and the High Court restated the principle arising from O’Sullivan v Law Society of Ireland [2009] IEHC 632  - that the full range of fair procedures and natural justice is required at the disciplinary stage of the procedure, and not earlier in the investigation

This has all brought some additional key considerations to the forefront for Workplace Investigations

1) A completely impartial investigator must conduct the process – This is best achieved externally especially in smaller companies;

2) An explicitly clear terms of reference is needed for the investigation and it must be strictly adhered to;

3) Ensure that the employee is made aware of the allegations made against him/her;

4) They are given the opportunity to respond to any/all allegations being made against them;

5) The investigation should be carried out as a fact finding non-decision making process and all decisions and the final binding findings of fact are kept within the formal disciplinary process. The Principles of Natural Justice and Fair Procedures apply to the disciplinary process;

6) They are potentially allowed to be represented legally if they request;

7) They can potentially cross examine / interrogate the material being reviewed.

Examples when to use:

  • A manager is suspicious and alleges that an employee may be involved in time theft or claiming false expenses;

  • There are allegations that one of the managers is bullying and or sexually harassing his direct reports;

  • There have been allegations of gross misconduct against a memeber of staff;

  • There has been an alleged breach in company policy relating to vehicles or a misuse of company IT assets ;

  • Driving or working under the influence allegations have been made;

  • An allegation of racist / sexist behaviour has been made;

  • An allegation of theft of property has been made.