THE NECESSITY FOR workplace investigations is ever increasing and can at times be a complex area where fair procedures and natural justice are paramount.
A workplace investigation should be an independent and unbiased inquiry 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 has 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.
An organisation may choose to initiate an investigation when an incident has occurred that it may deem potentially inappropriate, or a potential breach of their policies, such as:
- A complaint against an employee in relation to performance 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
The terms of reference set out the issues, objectives and scope of the investigation and should be clear and concise. It should be designed to fit the allegation and should consider the following:
- The core issues that need to be addressed in the investigation
- The investigator’s role and responsibilities and the procedure to be followed
- Overall time frame and interim deadlines
- Identifying the task involved and expected outputs
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.
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 to examine the evidence and conclude with a finding. This may be an internal person from the organisation.
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 scale for its completion 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 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 witnesses may also be interviewed with a view to establishing the facts surrounding the allegation.
All parties required to attend investigation meetings should be offered the right to be accompanied or have a representative.
The complainant and the alleged perpetrator should be informed in writing of the findings of the investigation, ie 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 and risks
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.
The risks associated with poor investigation practices are significant and mistakes can expose organisations to significant financial, legal and reputational risks.
Key mistakes that organisations often make during the course of an internal workplace investigation include:
- Lack of pre-investigation planning
- Poorly drafted or no 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
- Delay in undertaking an investigation
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 then provided that an employee would be entitled to legal representation in disciplinary proceedings in certain “exceptional circumstances”.
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 the employee is formally made aware of the allegation made against them in advance: is allowed to respond before any decision is made; is allowed to be represented; and has the right to appeal any decision made. Throughout, there should 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.
Derek McKay is managing director of Adare Human Resource Management.