Jurisdiction of an External Investigator – Objectivity and Terms of Reference

Last updated: November 2nd, 2023


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

Book a call with a consultant

Complete the form below and a consultant will call you as soon as possible.

Book a call with a consultant

Complete the form below and a consultant will call you as soon as possible.

Latest Resources

Employer’s guide to lay-offs in Ireland

It’s common for businesses facing a downturn in trade to let employees go on a temporary basis. As an employer, you may also need to […]

Long-term sickness absence: When to conduct an informal welfare meeting

Everyone gets sick, so short-term sickness absence is something all employers will have to deal with from time to time and tends to cause minimal […]

Notice periods: an employer’s guide

Within a business, it’s constantly necessary to re-evaluate and adjust workforce planning. Whether this is due to employees looking for different career paths or the […]

Olga Shevchenko

Director/Advocate, Immigration Advice Bureau

Olga Shevchenko specialises in immigration advocacy and consultancy, in particular, employment permit, visas, family reunification, citizenship, etc, for those seeking to visit, reside or invest in Ireland.

Olga provides extensive information, knowledge, and support to her clients, enabling access to positive solutions for people struggling to handle the immigration law.

Minister Neale Richmond

Minister of State, Department of Enterprise, Trade and Employment

Neale Richmond TD was appointed as Minister of State at the Department of Enterprise, Trade and Employment with special responsibility for Employment Affairs and Retail Business and the Department of Social Protection in January 2023.

Much of his work at the Department of Enterprise, Trade and Employment is with businesses, workers, their representative bodies and the State Agencies to ensure that the economic recovery and growth extends to all parts of the country. He works closely with the SME sector, including retail, on building resilience and on the transition to the green and digital economies.

Mark Carpenter

Director of Regulatory & Corporate Affairs, Sky

Mark Carpenter is Director of Regulatory & Corporate Affairs at Sky Ireland. In this role he has responsibility for External and Internal Communications, Public Policy and Regulatory Affairs and the company’s ‘Bigger Picture’ (CSR) programme. He also works closely with Sky Group teams on a variety of matters, in particular our partnerships with domestic broadcasters.

Prior to working at Sky, Mark worked as a Policy Officer in Houses of the Oireachtas and as a Management Consultant at Accenture. He has a BA in History from Oxford University and a PhD in Political Science from Trinity College Dublin.

Nora Cashe

Litigation and Compliance Manager, Peninsula

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.

Nora has extensive experience representing clients at Employment Tribunal hearings, Conciliation / Mediation meetings before both the Workplace Relations Commission and the Labour Court. 

Nóra is a member of the Irish Employment Law Association and engages with the WRC Adjudication Service as part of their stakeholder engagement forum.

Deiric McCann

Managing Director, Genos International Europe

Deiric McCann leads Genos International Europe – The EU division of a world-leading provider of emotional intelligence solutions. 

With over two decades experience at the highest levels of management, Deiric supports clients to develop the resilience, emotional intelligence, psychological safety and engagements of their employees.

Rhiannon Coyne

Senior HR Consultant, Graphite HRM

Rhiannon Coyne is a Senior HR Consultant at Graphite HRM and will be providing an overview of best practice on how to deal with complaints of bullying and harassment in the workplace. 

With a number of recent updates to employment laws, Rhiannon will take a closer look at employment equality and how it is interlinked to Health & Safety and what employers can learn from recent case laws.

David Begg

Chairman, Workplace Relations Commission

David Begg was appointed Chairperson of the Workplace Relations Commission (WRC) in January 2021.

David is also a professor at Maynooth University Institute of Social Sciences. Mr Begg’s extensive history in the trade union movement included leading the ESB Officers Association and Irish Congress of Trade Unions, stepping away from the latter in 2001 to chair international aid agency Concern.

David Begg was also previously a director of the Central Bank of Ireland between 1995 and 2010.