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Kevin Langford

Partner, Arthur Cox

Pitfalls in Managing Workplace

Investigations

Kevin Langford, PartnerArthur Cox

Tuesday 6 October 2015

Pitfalls in Managing WorkplaceInvestigations

3

Commencement of Investigation

• Identify stages in the process (investigation, disciplinary, appeal)

• Select persons to conduct the various stages

• Internal or external investigator?

• Draft Terms of Reference

• Follow your own procedures!

4

Conducting the Investigation

• Offer natural justice rights at investigation stage?

• Interview witnesses / notes of meetings

• Gathering evidence

• IT searches

• Reliance on CCTV footage

5

Investigation Report

• Make findings of fact on balance of probabilities

• Make recommendations?

• Issue report in draft?

• Who receives the report?

• Philip Smith –v- RSA (2015) – Employment Appeals Tribunal

6

Holding Suspensions

• Does disciplinary procedure provide for suspension - Wallace –v- Irish Aviation Authority (2012) – High Court

• Is suspension necessary to facilitate investigation?

• Bank of Ireland –v- Reilly (2015) – High Court

• Have a valid reason for suspension - not an automatic response

• Manner of suspension – Smith –v- RSA

7

Disciplinary Proceedings

• Reasonable notice of disciplinary hearings

• Entitlement to full natural justice rights

• Right to representation – legal representation?

• Sanctions hearing only or can investigation findings be disturbed?

• Decision maker must not have been involved in investigation

8

Appeals

•Appeal person must not have been involved in previous stages

•Oral hearing, written submissions or both?

•Interview Appellant only or re-investigate?

•Power of appeal person to overturn sanction/substitute new sanction

9

Miscellaneous Issues

•Bias – O’Neill –v- Beaumont Hospital (1990) – Supreme Court

•What if employee goes on stress leave during any stage of the process?

•Parallel criminal investigation

•Obligation to report to An Garda Síochána/Regulators

•Protected disclosure – five years’ pay