Sponsored by Supported by Kevin Langford Partner, Arthur Cox Pitfalls in Managing Workplace Investigations.

Sponsored by

Supported by

Kevin Langford

Partner, Arthur Cox

Pitfalls in Managing Workplace

Investigations

Kevin Langford, PartnerArthur Cox

Tuesday 6 October 2015

Pitfalls in Managing WorkplaceInvestigations

3

Commencement of Investigation

• Identify stages in the process (investigation, disciplinary, appeal)

• Select persons to conduct the various stages

• Internal or external investigator?

• Draft Terms of Reference

• Follow your own procedures!

4

Conducting the Investigation

• Offer natural justice rights at investigation stage?

• Interview witnesses / notes of meetings

• Gathering evidence

• IT searches

• Reliance on CCTV footage

5

Investigation Report

• Make findings of fact on balance of probabilities

• Make recommendations?

• Issue report in draft?

• Who receives the report?

• Philip Smith –v- RSA (2015) – Employment Appeals Tribunal

6

Holding Suspensions

• Does disciplinary procedure provide for suspension - Wallace –v- Irish Aviation Authority (2012) – High Court

• Is suspension necessary to facilitate investigation?

• Bank of Ireland –v- Reilly (2015) – High Court

• Have a valid reason for suspension - not an automatic response

• Manner of suspension – Smith –v- RSA

7

Disciplinary Proceedings

• Reasonable notice of disciplinary hearings

• Entitlement to full natural justice rights

• Right to representation – legal representation?

• Sanctions hearing only or can investigation findings be disturbed?

• Decision maker must not have been involved in investigation

8

Appeals

•Appeal person must not have been involved in previous stages

•Oral hearing, written submissions or both?

•Interview Appellant only or re-investigate?

•Power of appeal person to overturn sanction/substitute new sanction

9

Miscellaneous Issues

•Bias – O’Neill –v- Beaumont Hospital (1990) – Supreme Court

•What if employee goes on stress leave during any stage of the process?

•Parallel criminal investigation

•Obligation to report to An Garda Síochána/Regulators

•Protected disclosure – five years’ pay