The demand for investigations in the workplace is growing and continues to cause employers headaches in terms of both the time and indeed the cost including management time expended in the carrying out of same.
Unfortunately many workplace investigations continue to be conducted in a haphazard fashion culminating in those carrying out the investigation ending up in the witness-box down the road and being subject to intensive cross-examination.
Having conducted and advised on a number of complex workplace investigations, my first piece of practical advice to those new to it is to take the time you think a workplace investigation will take and in many cases double it! Many unexpected challenges will arise along the way including parties out on sick leave, those simply refusing to take part in the investigation process itself or perhaps a suspicion of collusion along the way which undoubtedly may lead to delays. If an investigation team is appointed should it be gender balanced? Should workplace investigations be audio recorded and are there data protection considerations here? Should an independent third-party with specific expertise in this area be appointed to conduct the investigation? How do employers handle such challenges whilst being mindful of the rights and entitlements of all parties to the investigation? In the first of a series of blogs on this topic I thought I would start by looking at some of the basic starting points of investigations.
We all know that workplace investigations must be conducted in a proper and fair manner. What does this mean? The case of Gallagher v the Revenue Commissioners (No.2) 1 IR 55 confirms that fair and reasonable procedures must be adopted in a workplace investigation and that the “practicalities” of the situation must be observed as outlined by Justice Laffoy in Maher v Irish Permanent 1998 E.L.R 77.
It is clear from caselaw in this area that the onus of conducting a proper and fair investigation falls on the employer or any external appointed investigator to ensure that the investigation is properly carried.
I have outlined below some initial practical tips prior to the commencement of any workplace investigation:
- Review policies and procedures including disciplinary and grievance matters and allegations of harassment, sexual harassment and bullying. A good starting point is to review the codes of practice available on the Labour Relations Commission website (www.lrc.ie) and the Health and Safety Authority website (www.hsa.ie).
- Where appropriate set out the steps involved in the investigation process including the proposed length of time in completing the investigation, whether the initial investigation will be conducted internally or externally, who can be appointed to represent the parties and the fact that the investigation process must be kept confidential. It is also prudent to include a right of appeal in any investigation process to either an independent external third party or someone within the organisation wholly unconnected to the investigation process. To do otherwise may lead to allegations of impartiality or bias.
- Ensure the Terms of Reference governing any workplace investigation are clearly and comprehensively set out. I often come across Terms of Reference to an investigation which do not even include what the investigation will allow e.g. should complaints from two years ago be included or should a time frame be imposed? Undoubtedly the passage of time can damage recollection of events and although the complainant may have kept detailed records of alleged events, the respondent may not.
- What representation should the parties be allowed to have? I will deal with the issue of legal representation at disciplinary investigations at a later date however the Codes of Practice generally provide that both parties have the right to be accompanied and/or represented by a workplace colleague or a trade union representative.
In my next blog I will deal with some of the case-law in this area as well as dealing with the complex issue of parallel investigations and what basic steps should be taken if a particular incident in the workplace could give rise to entirely separate and independent criminal proceedings. I’ll also deal with some other issues I have encountered with practical solutions of how to deal with these should they arise in your workplace investigation.
I’d welcome any feedback on workplace investigation difficulties you may have encountered previously!