The Workplace Investigation and the Law Part 3

(In this piece I will discuss cases which stray beyond the ‘pure’ investigation, please see earlier posts for full paper)

A second, and related point is that, in my submission (and despite the comfort that may be found in the foregoing case law) investigators should think twice about assignments where the terms of reference take them beyond the pure investigation described there.

 That brings me to the following cases where precisely that problem arises.

McLoughlin v Setanta Insurance Services Ltd 2011 [IEHC] 401 Injunction granted

Giblin v Irish Life & Permanent PLC [2010] IEHC 36

O’Sullivan v. Mercy Hospital Cork Limited, [2005] IEHC 170

These are all cases where to one extent or another the investigation process was compromised by breaches of fair procedure, the breach activated by the fact that they moved beyond the Minnock ‘pure investigation’ principle and into sanction.

It should be noted that some form of combined investigation/disciplinary step is not ruled out per se.

In Giblin Laffoy J. said that a one stage ‘inquisitorial process’ was possible.

It is not to be inferred from this decision that I consider that it is not appropriate for executives of the defendant who are involved in the human resources aspects of the defendant’s management to conduct the type of investigation which was conducted in relation to the plaintiff. Nor is it to be inferred that I am of the view that the person or persons who conduct the “thorough investigation” to be conducted under para. (iv) of the Disciplinary Procedures in all cases should not be the decision maker as to whether the conduct of the employee being investigated warrants a serious sanction such as dismissal. A one stage inquisitorial process may be appropriate in many cases.

This may be a matter of terminology but it is certainly confusing (to non lawyers anyway) to describe what is essentially an adjudication as an investigation and it would of course require the full application of the fair procedure requirements. (Although I am aware of a process within a large multinational where an internal appeal against redundancy is described as ‘an investigation appeal’).

 But in all these cases there were defects.

In McLoughlin the investigators were held to have produced a reasoned determination of the case, in Giblin the investigation team was charged with deciding on Mr Giblin’s case and on a sanction, which could include dismissal and in O’Sullivan v. Mercy Hospital Cork the investigator produced adverse findings against the plaintiff employee without her being notified that this was happening; all offending the sanction rule.

In passing, there is some comfort in Judge Laffoy’s comments for owner managers conducting disciplinary proceedings in small businesses where compliance with SI 146/2000 (a document whose authors appear to have overlooked SME’s) can be very difficult, in relation to an appeal for example. (See also Mooney v An Post where the difficulties in complying with rigorous standards of fair procedure were sympathetically reviewed by Keane J. where he said that ‘the two great central principles – audi alteram partem and nemo iudex in causa sua – cannot be applied in a uniform fashion to every set of facts.)

I am more concerned here with the practise of external investigators.

If we can turn to Doherty & Anor v HSE [2008] IEHC 331 the court was addressing a different matter there which turned on the distinction between serious and gross misconduct.

But in this case the terms of reference of the investigator permitted a finding as to whether the allegations represented serious misconduct, which would then be followed by a disciplinary hearing to decide on sanction (so stopped short of the error in McLoughlin, Giblin and the Mercy Hospital, and fell within the ‘Minnock principle’).

So legally speaking this ought to be acceptable on the basis of Judge Laffoy’s observations in Giblin and subject to fair procedure rights being observed, as it meets the criteria outlined in O’Brien and Minnock in avoiding imposition of a sanction.

However, an assignment as an investigator, (or an investigator only) on this basis is something that should be considered carefully.

It is hard to know why any employer (a large employer in particular) would suffuse the two stages of the process rather than keeping clear water between its investigation and disciplinary stages and avoiding this rather odd hybrid adjudication process.

While it is technically true on the basis of the authorities reviewed here that a finding of serious misconduct is not per se ‘a sanction’ it brings a respondent to the edge of the sanction precipice. Viewed from the perspective of employment law or HR practitioners a conclusion on misconduct and a decision on sanction are much closer bedfellows than any link between a finding of fact resulting from an investigation and a conclusion on misconduct.

For example, a finding of serious misconduct automatically triggers a sanction as it is difficult to imagine any situation where it would not. The two are inextricably linked.

There does not appear to be any logic in separating the finding on conduct from the application of an appropriate remedy, and none in allowing it to be done outside the parameters of the recognised disciplinary procedures.

Indeed the opposite approach seems more logical. Investigations have been compared to the compilation of a ‘book of evidence’. To continue this analogy it would be absurd to separate a decision on guilt in the courts from the passing of a sentence.

Further, it will be recalled that in O’Brien v Aon Insurance Managers the court appeared willing to ignore ‘infirmities’ in the investigation provided the respondent had the right to have the full disciplinary hearing consider all facts ‘afresh’ and have the benefit of fair procedure applied at the hearing where they would be considered. This was seen as correcting ‘infirmities’ in the investigation and it underpins the clear water needed between the two processes and suggests that, even allowing that single ‘inquisitorial processes’ might escape adverse judicial attention separate is safer.

That said, in Minnock the court intervened to grant an injunction on the basis that the investigator did not confine himself to the ‘pure evidence gathering’ to which the rules of natural justice do not apply and was prepared to reach ‘findings’. Where exactly this stepped over a line of which the court disapproved is not clear, but it seems likely to have been a result of the defect in the Terms of Reference.

In any event even if it can be said that a finding of misconduct lies between a ‘pure investigation’ but falls short of a sanction it is too close for comfort to the latter for safety, or, in any case for best practise for investigators.

It may be of interest, if not legally then in relation to the practicalities of setting up and running the investigation that the plaintiffs in a number of these cases were very senior employees. O’Brien was MD of Aon, in Cribbin v PLC Ingredients the plaintiff was a Director and a 25% shareholder, McLoughlin was the General Manager in Setanta. It may be that the set up and planning of a workplace investigation in such cases requires greater care and attention to detail than with other employees, if only because if aggrieved they are more likely to reach for a legal remedy.

In Cribbin for example the investigator was a Senior Counsel, not normal in a workplace investigation, (although he was eventually discharged for failure to complete his report in time; perhaps a reminder to include the ‘due dispatch’ obligation that falls on arbitrators in any ‘CIArb Investigation Rules’.) There are defined time limits in the public service dignity at work ‘Positive Working Environment’ policy, for example, although they may be extended relatively easily by notification to the parties).

(See also cases related to delay (not included in this post); notably UD 705/2008 where the Employment Appeals Tribunal set out some guidelines on delay)

On a related point, investigators are often asked in Dignity at Work investigations to reach conclusions on facts AND whether they meet the definition of bullying.

Is this much different in principle to a finding of misconduct? Unlike misconduct there are some criteria against which bullying can be assessed and normally even a finding on bullying goes to the first stage of a disciplinary process anyway, or may even enter a mediation process.

Misconduct involves a much greater element of value judgement, often particular to the employment and is a form of adjudicative activity more associated with the formal disciplinary process both in practice and under the terms of procedures drafted under the Statutory Instrument on Grievance and Discipline SI146/2000).

As it turns out the decisions of the courts so far in relation to a finding of misconduct by an investigator would seem to protect a finding of bullying also so, given that it is even one further stage removed from the danger of a sanction than a finding of misconduct it is likely that the reservations expressed here about findings of misconduct do not apply to bullying.

Other issues which may arise under fair procedure requirements are entitlement to representation, sight of witness statements, etc. It is submitted that these should form part of a best practise model of conduct of investigations, although as with workplace discipline in general entitlement to legal representation is not favoured, and indeed provided the process falls within the Minnock decision principles it would appear not required (But see Burns v Governor of Castlerea Prison [2009] IESC 33)

There is much more, and I have not touched here on items 3-7 in the list on page one, although I have assembled a number of cases on all those topics. But I trust this brief survey of a important aspect of the legal principles which will form part of our future training of investigators has been of interest.

Also bearing in mind that many of the dicta referred to in this paper might be regarded as obiter or fact sensitive the professional standard for the investigators we train and recommend in CIArb should be sufficiently robust and watertight to withstand a more direct challenge in the future.

Our task now is to proceed from this understanding of the law in relation to investigations to construct professional standards which take the legal principles as a minimum but build on them to create a high, and recognisable standard for the practise of workplace investigations.

Pat Brady FCIArb

First delivered March 8th 2013

Posted May 12th 2013

Suggested Reading

  • Investigating complaints in the workplace-law and best practice

Paul Glenfield, Matheson Ormsby Prentice

  • Investigations in the workplace,

Terence McCrann , McCann FitzGerald Solicitors

  • Disciplinary Procedures; the pitfalls of a flawed Investigation

Kieran O’Callaghan BL in ‘The Parchment’ DSBA, Spring 2013

  • Workplace Investigations,

Dominic Wilkinson BL, in IRN 46/2006

Leave a Reply