Jurisdiction of an External Investigator – Objectivity and Terms of Reference

Last updated: June 22nd, 2022

Background

This case was initially heard in the High Court to consider the following questions:

  1. Who is appropriate to conduct investigations?
  2. Does an employee have the right to be consulted on the Terms of Reference of a process applicable to them?

In April 2014, NUI (National University of Ireland) received a formal complaint of bullying and harassment from an employee against nine of her colleagues.

Contentious from the outset, the complainant wished for the investigation to be conducted by an external investigator under the Universities Grievance Procedure. The University disagreed, and the matter was ultimately considered by the Labour Court. The Labour Court recommended that an external investigator was to be appointed by them.

The Investigator appointed by the Labour Court was an experienced ex-trade union official, and Right’s Commissioner. The investigator, on appointment, disclosed that in 1996 she had filled in for a colleague, in the capacity of union representation, on behalf of the Complainant in a case against the University.

The Labour Court set out the expectation in relation to the Terms of Reference of the investigation and the remit of the investigator in that regard. That included determining the scope of the investigation (in consultation with the University and the Complainant), the application of the rules in relation to fair procedure and natural justice, and having regard to the University’s own policies and procedures relating to grievances and Dignity and Respect at Work. And that “the Investigator’s decision in these matters” would be final.

Having consulted with the University and the Complainant, the Investigator wrote to the Respondent, Mr. Nasheuer, detailing the methodology of the investigation, which included the finalised Terms of Reference.

Mr. Nasheuer’s solicitor wrote to the Investigator, outlining the concerns of Mr. Nasheuer in relation to the significant delay in him receiving the complaint. The University informed Mr. Nasheuer about the complaint on the 1st of December 2016, although the complaint was received in April 2014, nearly two years’ later.

In June 2017, Mr. Nasheuer’s solicitor again wrote to the investigator to say that they did not agree with the Terms of Reference and requested that they are amended to include a review of the delay in the Respondent receiving the complaint. The Investigator wrote back to say that the Respondent did not have any jurisdiction in relation to the Terms of Reference and that the time delay was out of scope of the investigation also.

On 21st July 2017, the investigator met with Mr. Nasheuer and his solicitor to receive his response to the allegations. During the course of the meeting, Mr. Nasheuer’s solicitor raised the issue of the Investigator representing the Complainant over twenty years ago. They asked that she remove herself as the investigator on that basis. As the investigator felt that this did not compromise her objectivity in the investigation, she disagreed with Mr. Nasheuer and his solicitor in this regard.

In July 2017, Mr. Nasheuer’s legal counsel sought a High Court Injunction to stop the University continuing the investigation. Following an oral hearing with Baker J on 13th September, the High Court granted the prevention of the investigation continuing.

The High Court determined that on the first point, in relation to the Investigator representing the Complainant twenty years’ ago, that this was too remote in time, and was conducted in such a temporary and professional capacity, that it did not justify an injunction on that basis.

However, injunction relief was granted on the basis that the Investigator had not consulted with the Respondent in relation to the Terms of Reference. The rationale for this was that it looked like in doing so created a reasonable perception of bias, given that the Complainant had been consulted, and the Respondent had not. Pending a full trial in the High Court, the University appealed Baker J’s decision to the Court of Appeal.

Court of Appeal Determination

The Court of Appeal looked at the test for objective bias as set out in Denham CJ in Goode Concrete v CRH plc & Ors to see if this resulted in such as serious issue to be tried. Irvine J stated that “a reasonable and fair-minded observer” could not perceive bias on an issue with the Terms of Reference that related to the Investigator’s and Complainant’s circumstances which occurred over twenty years ago, in addition to the fact that these circumstances were explained to the Respondent along with the Terms of Reference.

Learning Points

The judgements, in this case, clarify for employers that:

  1. An employer has the right to appoint an external objective investigator as per the organisation’s policies and procedures.
  2. A Respondent in an internal workplace investigation does not have an inherent right to be consulted in relation to the Terms of Reference of an investigation.

Employers should note that they must have an express provision in the relevant policies clearly stating who has the responsibility in determining the Terms of Reference for an investigation and the right to appoint an external investigator.

Where an employee wishes to dispute the Terms or Reference, or the appointment of an investigator, the employer should addresses this concern and document to the employee clearly the decision taken in that regard, and the rationale for that decision.

If you have any questions regarding the use of external investigators in workplace investigations, please contact the advice line on 1890 253 369

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Nora Cashe

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Nóra studied Law in Griffith College Dublin and qualified as a Barrister in 2008, practising in the area of Criminal law. She is also member of the Irish Employment Law Association.

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