The Workplace Investigation and the Law Part 1

Paper delivered to a conference organised by the Chartered Institute of Arbitrators, the Irish Association of Women Lawyers, Arbitral Women and the Law Society on Conflict Resolution: Celebrating Women as ADR Leaders

The bungled workplace investigation ‐ a look at the pitfalls of poorly investigated conflict and the real cost of badly managed complaints.

This is the first of three installments of this paper that I will publish in the coming days

Background

The Chartered Institute of Arbitrators is a broad church of dispute resolvers across many professions; construction, the law, financial services, other commercial sectors and the employment sphere. Our members are arbitrators, construction adjudicators, mediators and practise other dispute resolution processes.

Until now, we had no quality assured standards, panels or approved training in the way we do with other dispute resolvers. (Neither incidentally has anyone else but we decided to do something about it.)

We have done so by developing a course in workplace investigations and our ambition is to offer the legal profession, employers and others who seek it the comfort of a unique cadre of practitioner investigators trained to a good standard exactly as we do with arbitrators and mediators.

First we had to define the skillset needed for the conduct of an investigation; from the planning and set up stage through case management, interviewing techniques including with vulnerable interviewees, decision making and report writing.

Because workplace investigations are often linked to the disciplinary process the general framework of the law on discipline and dismissal overarches all of this. Indeed there is now something one might describe as the law relating to workplace investigations as a sub set of employment law. For example, a recent (Unreported so far, 21st December 2012) High Court decision: Patrick Kelly v Minister for Agriculture and Others addressed the obligation to provide witness statements during an investigation. (per Hedigan J.)

With a number of distinguished exceptions (and some further reading will appear at the end of the final piece) this has not yet got the detailed attention it deserves. Our purpose was not to add to the academic study of the law but to provide practitioners with practical guidance on pitfalls they should avoid, and to assist us in developing a best practice model for the conduct of investigations.

The starting point was to identify those potential problems which could result in adverse consequences for the workplace investigation (and investigator). This is ‘work in progress’ as decisions of the EAT, for example are a nightmare for the researcher as the EAT database is not searchable by case type. This is happily going to change as part of the reform of the Employment Rights bodies.

Why an investigation? Lets start not at, but just before the beginning. Why is investigation needed at all?

It is important to answer this question initially for HR professionals who are likely to make the first decision on this.

It is now quite common to include a commitment to hold an investigation as part of the disciplinary procedure incorporated in Contracts of Employment. In such cases the employee has a contractual right to an investigation

It may be required by Codes of Practice (on bullying, for example,) or by best practice compliance with fair procedure requirements, bearing in mind the relationship to possible later disciplinary procedures; a point discussed later.

In the case of a possible dismissal the Unfair Dismissals Act 1977 says at section 6 (1)

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The EAT has said: “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to:

  • the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and
  • the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed

Hennessy v Read & Write Shop Ltd UD 192/1978

And this case was noted with approval more recently in Michael Morales v Carton Bros UD 835/2011 although in that case the employer was held to have reached a disproportionate conclusion despite having had a good investigation, in other words failing to meet the ‘substantial grounds’ test in the Unfair Dismissals Act.

The UK EAT (which it should be noted is a division of the High Court) has similarly held;

First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. British Home Stores v Burchell (1980) ICR 303 EAT

(For other UK authorities on investigations see Midland Bank v Madden (2000) ICR 1283 CA, Garry V London Borough of Ealing (2001) IRLR681 CA Tesco Stores Ltd v Pryke (2006) EAT)

So for the purpose of informing any disciplinary proceedings against an employee in addition to the considerations above it is obviously important that an employer is sure of the relevant facts before pressing on with those proceedings.

(On the issue of suspension pending an investigation see Khan v HSE [2008] IEHC 234 and McNamara v South Western Health Board [2001] IEHC 24. Essentially the applicability of fair procedure turned as in the cases below on whether the suspension added up to a sanction).

But returning to the pitfalls the following agenda of headings emerged as needing attention in developing an understanding of the law and investigations.

  1. Fair procedure
    1. General principles
    2. Applicability to Investigations
    3. Suspension pending investigation
  2. Crossover into disciplinary
  3. Failure to carry out investigation
  4. Inadequate/Flawed investigation
  5. Delay
  6. Independence of Investigator
  7. Standard of proof

While avoiding unnecessary scrutiny by the High Court is a prudent consideration for any of us, this should not be a defensive exercise only. We want to go beyond that thinking and move towards developing a best practise model that would be legally watertight for the long term but moreover provide comfort to the parties involved that they were getting the exercise they are entitled to get, and contribute to a resolution of the issue in hand.

It should resemble for investigators what the Institute’s standards and rules provide for arbitrators and mediators. (These can be viewed at www.arbitration.org)

In the next piece I take a brief look only at one of these issues; how fair procedure principles impact on the investigation.