Gathering evidence in workplace investigations

Last updated: June 15th, 2023

First published: June 15th 2023
Last updated: June 15th 2023

If you need to conduct a workplace investigation, something has probably gone wrong.

In general, workplace investigations are necessary to establish facts in connection with the following HR complaints:

  • A performance or misconduct issue involving a particular employee
  • A complaint by a fellow employee, customer or third party involving a particular employee
  • An allegation of bullying, harassment and / or sexual harassment.

The purpose of the investigation is to find out exactly what happened and involves gathering as much relevant evidence as possible to allow you to decide how the disciplinary process should proceed.

It’s vital to bear in mind that the principles of fair procedures also apply at this early evidence gathering stage.

This post will consider how to ensure that there is an impartial approach to gathering evidence in a workplace investigation.

What is the purpose of the investigation?

First, you need to decide what exactly the investigation aims to achieve. Is it to gather evidence or to establish conclusive findings of facts? This is an important distinction to make.

Information gathering exercise

If the investigation is only concerned with gathering information, there will be less of a premium on ensuring that the investigator adheres to the principles of natural justice. The investigating officer should nevertheless ensure that s/he maintains an impartial and fair approach to the information gathering exercise.

Establishing binding findings of facts

If the investigating officer is tasked with establishing conclusive findings of fact, the investigation needs to strictly comply with the company’s internal disciplinary and grievance procedures.

Comply with your own policies and procedures

One of the most common faults employers encounter in running disciplinary procedures is failing to abide by the terms of their own policies and procedures.

Consider WRC Codes of Practice

There may also be Codes of Practice to consider. The Workplace Relations Commission has drafted Codes of Practice to guide employers on how to prevent and manage workplace harassment, bullying and disciplinary and grievance procedures.

Establish terms of reference

A useful approach for managing investigations into difficult disciplinary or harassment issues is to establish Terms of Reference and agree them with the employee in question.

The Terms of Reference should state the issue being investigated and confirm the objectives and scope of the investigation.

A Terms of Reference document might include the following details:

  • the issue to be investigated
  • the investigator (internal or external)
  • the investigator’s role and the way s/he will conduct the investigation
  • Will the investigator’s report simply gather information for review or establish conclusive facts. Is the purpose of the investigation clear to the employee?
  • Will the investigator speak to witnesses?
  • Will the employee be represented?
  • Will the witnesses be cross-examined?
  • Will the investigator issue a draft report?

Right to representation

Broadly speaking, employees do not have a right be represented by a lawyer in a workplace investigation. This will however depend on the specific facts of the case.

If there are legal issues or complex facts to consider and the employee can only make a defence with the help of a legal representative, a court may rule that the employee is entitled to enlist the services of a lawyer to handle his responses to the investigation.

If in doubt, take expert advice

Disciplinary or grievance procedures are very difficult for employers to handle without expert advice.

Employees have a right to protect their good name and if an employer mishandles any part of the procedure whether it’s the investigation stage or the hearing stage, a WRC claim is the inevitable outcome.

To avoid making a tough situation worse, call a Graphite HR expert for advice.

You’ll get us on 01 886 0350 or leave your details here and we’ll call you back.

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

What happens when workplace romances go wrong

workplace romances gone wrong
First published: February 14th 2024 Last updated: February 14th 2024 Love makes the world go round, or so they say. But what effect does love […]

10 tips for handling an office romance

First published: February 12th 2020 Last updated: February 14th 2024 It’s estimated people spend a third of their life at work, so it’s no surprise […]

An employer’s defence to sexual harassment claims

Sexual harassment claims
First published: December 11th 2023 Last updated: December 11th 2023 While the vast majority of Christmas party celebrations pass off without any problems, there’s no […]

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.