Anatomy Of A Workplace Investigation In Ireland: How To Handle Some Of The Practical Issues

Complex workplace investigations were the exception and not the norm until a few years ago. In the year 2000 a one page statutory code of practice was published in Ireland to guide employers through the humdrum of workplace disciplinary and grievance investigations containing only one sentence regarding the issue of employee representation in investigations. Fast forward a decade and a half or so and the tables have turned. This one issue has been the subject of two High Court judgments, a Court of Appeal and a Supreme Court judgment. For clarity, not all judgments relate to the same case.

This is a rich seam for acrimony. There are volumes of case law on the subject. Why is this? Partly because an employee's right to due process is rooted in statute and the Irish Constitution and partly because the Irish High Court has the power to restrain workplace investigations where an employee claims those rights have been eroded. Access to the High Court is not the preserve of the C suite. Much of the case law derives from disputes between ordinary workers and employers. It pays to get it right when it comes to workplace investigations.

Start as you mean to go on - the terms of reference

The investigation needs to be carefully mapped out. Be clear about the nature of the investigation. If the investigator is tasked with information gathering only then they should not stray outside the boundary lines. An information gathering investigation can proceed without triggering the rigorous requirements of natural justice although basic fairness should guide its conduct.

If the investigation will result in binding findings of fact however, that cannot subsequently be challenged, then this alters the nature of the process significantly. Employers need to take care to engage rigorous standards of fairness in such an investigation.

To stay on track, use the internal disciplinary and grievance procedures prepared for the Irish business. Employers must abide by the standards that they have set for themselves even where those standards have been gold plated. Check if a statutory code of practice applies to the subject matter of the investigation. Bullying, discrimination, disciplinary and grievance investigations are all the subject of several Irish statutory codes of practice.

In addition to this, for complex investigations, draft and agree with the employee bespoke terms of reference to define the following key issues:

The case to answer. The cast and crew - who...