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.

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