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21.04.2021

Workplace investigations: Know the facts

By Dominic Carthy

HR investigations are structured procedures to deal with allegations of different kinds in the workplace. The allegations will generally relate to conduct or performance. For the purposes of this post, we will focus on disciplinary investigations as many employers currently have concerns about staff compliance with new work protocols to deal with the risks of COVID-19.

The purpose of any investigation is to establish facts before deciding if a member of staff has a case to answer. Although this sounds straightforward, HR investigations tend to deal with sensitive issues and employees involved are likely to find the experience stressful.

This is why it’s best to adopt a structured approach to investigations to ensure you follow fair procedures at this early stage of a disciplinary process.

Where to start?

The first question to ask is “is an investigation necessary?” If you need to establish facts, then an investigation will be necessary. If there are no gaps in your understanding of what actually happened, an investigation won’t be needed.

Who investigates?

The investigating manager needs to be impartial and should be well removed from the allegations themselves. It’s also important that the investigation manager is competent to oversee the investigation. Smaller businesses may need to appoint an external investigator to ensure impartiality.

The structure of an investigation

It’s best to start by establishing clear terms of reference. Terms of reference might look at the following issues:

  • The allegation.
  • Is the investigation gathering information or establishing non-contestable facts?
  • Who will be needed to complete the investigation? Will it be necessary to appoint an external investigator? How will witnesses be handled?
  • Will employee representatives be involved?
  • What happens when draft and final investigation reports are prepared?

The purpose of the investigation

It’s crucial to establish the purpose of the investigation at the outset. The key question to ask is “will the investigation gather information or establish non-contestable facts?” An information-gathering exercise is not subject to the same principles of natural justice that would apply to an investigation that is being used to establish facts that the employee cannot contest.

Follow policies and procedures

Many employers will have employee handbooks that set out how they will deal with disciplinary issues. It may seem self-evident, but it’s important to comply with the terms of your own handbook.

Certain disciplinary issues will also fall under the guidance contained in codes of practice developed by the Workplace Relations Commission and Health and Safety Authority. There are codes of practice covering anti-bullying, discrimination/equality, disciplinary and grievance procedures. These should be borne in mind during any investigation process.

Concluding the investigation

The outcome of the investigation should be contained in a report prepared by the investigating manager. If there is a case to answer, the investigating manager will submit this report for use at a formal disciplinary hearing. At this stage of the process, the investigating manager has completed their work and should never be part of the decision-making panel or have any further involvement in the disciplinary process.

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