Although the Workplace Relations Commission has published a Code of Practice on workplace disciplinary and grievance procedures, the Code contains no direction on how to conduct workplace investigation.

What should an employer do then if a workplace issue requires investigation?

Workplace investigations have been examined extensively by the courts and judgments handed down by both the High Court and the Supreme Court include important information for employers who need to conduct a workplace investigation.

Based on these decisions, the following advice will help reduce the risk of an employee querying the legality of your investigation process.

Establish terms of reference

The key point in establishing terms of reference is to clarify the nature of the investigation. If the purpose of the investigation is to gather information, it’s important to do just that. If the purpose of the investigation is to establish binding facts, you will need to be rigorous in ensuring that the investigation is conducted using fair procedures.

If the investigation is complex and requires the co-operation of a specific employee, you should aim to mutually agree terms of reference with the employee. The terms of reference should address the following:

• The issue being investigated.
• Who is conducting the investigation? An external third party or an internal independent investigator?
• Will the investigation simply gather information or will it make a report establishing binding facts? In other words, are the consequences of the investigation clear to the employee?
• Will the employee be represented by a legal professional, a trade union representative or a colleague or represented at all?
• What witnesses give evidence in the investigation and will they be cross-examined?
• Who will prepare the draft and initial reports?

Legal representation at investigation stage

If an employee seeks to be represented by a lawyer in a workplace investigation, you should carefully consider the circumstances.

A Supreme Court decision has confirmed that legal representation should only be permitted in a workplace investigation in certain exceptional circumstances that would result in the employee not receiving a fair hearing.

If the facts of the case are complex, difficult legal questions arise or the employee’s case is prejudiced by having to make their own defence, then you may need to permit the employee to bring a legal representative.

Taking witness evidence

It may be difficult to obtain witness evidence as part of an investigation. If the investigation involves a sensitive issue, co-workers may be unwilling to participate in the investigative stage of the disciplinary process.

There is no way to force an employee to give evidence in a workplace investigation. If the issue being investigated is particularly sensitive, the investigator may wish to submit the queries in writing to the witnesses to see if that method elicits a written response.

What if a separate investigation is underway?

In serious cases of misconduct, there may a separate Garda or regulatory body investigation underway.

If an employee is being investigated by external bodies, this may be sufficient cause to initiate a workplace investigation and any appropriate disciplinary action.

If a regulatory body is involved, it will be important to comply with any reporting or other relevant statutory obligations in relation to the complaint.

Ensure the investigation complies with fair procedures

If an employee challenges the legality of your investigation process, you will need to gather as much information as possible to demonstrate that you employed fair procedures.

What amounts to fair procedures will be examined on a case-by-case basis. When adjudicating a claim, the WRC or the courts will take into account the details of the contract of employment, the resources of the employer, and the specific details of the claim.

One fundamental issue to consider is ensuring that the investigation stage and disciplinary stage remain separate. Once the investigation is complete and a report has been prepared, you can proceed to a separate and distinct disciplinary hearing stage.

If there are any technical flaws in the investigation process, it is usually still possible to rectify them at the disciplinary stage provided the employee has the benefit fair procedures at the disciplinary stage.

Need help with a workplace investigation?

Workplace investigations can be daunting for inexperienced management teams.

For expert advice on workplace investigations from one of our employment law experts, call us today on (01) 886 0350 or request a callback here.

First Published: March 1st 2023
Last Updated: March 1st 2023