by Breda O'Malley December-13-2019 in Employment Law, Workplace Investigations

Background

Investigations have become more complicated in recent times due to the regulated environment in which businesses now operate. This is as a result of the increasing expectations of transparency in all areas of society. Employers need to ensure that employee’s rights are observed in the context of any internal investigations; however, equally important employers complying with their own internal procedures also any regulatory or legal requirements that may arise, for example, reporting any potential regulatory breaches or reporting suspected wrongdoing under the Criminal Justice Act 2011 (as amended).

Internal employment investigations often need to be undertaken on an urgent basis, depending on the nature of the issues to be reviewed. Investigations can go awry where matters escalate at step and so it is crucial to get things right in an investigation from the outset. Of note, disciplinary investigations must comply with the requirements of fair procedures and the principles of natural justice1. In particular, investigations that are being carried out in respect of bullying and harassment allegations must have particular regard to the relevant codes of practices and procedures in place in the organisation2.  In the context of any investigation, it is also important to be mindful of GDPR requirements arising in any case and addressing these issues in advance where possible.

 

Features of a "Good" Investigation

  • Lockdown the relevant information – what, when, why and who;
  • Identify the key people involved and invite them to a meeting for information and comments;
  • Make the Terms of Reference available to the affected individuals;
  • Allow such individuals to make a statement or submission - these can be obtained through the process of interviews or separately in writing;
  • Provide relevant information and copies of relevant material to the persons involved for review to allow them good time to provide comments before any meeting takes place;
  • Emphasise confidentiality in order to control potential leaks which may undermine the investigation;
  • Try to resolve any conflict of fact or opinion between individuals involved in the investigation;
  • Identify any risk of prejudice or bias – ensure appropriate layers of management available for different aspects of procedures;
  • Put any draft findings to the person concerned for response in line with fair procedures;
  • Fair Procedures - consider representation at meetings;
  • Possible requirement for forensic IT assistance – of particular relevant in the context of any alleged fraud; and
  • Next steps after investigation – disciplinary/other measures;
  • Consider conflict resolution strategies (mediation etc.).

Terms of Reference

The Terms of Reference are key to an investigation as they set out the scope of the investigation. It is essential that the Terms of Reference are clear and concise and address the following issues:

  1. The main issues to be addressed in the investigation;
  2. The Investigator’s role and responsibilities with an overall timeframe and deadline to complete in time with some flexibility incorporated depending on the circumstances; and
  3. The output and parameters of the investigation in accordance with fair procedures.

In the context of an employment investigation, the Terms of Reference should be shared with the employee and other relevant persons, for example, the complainant and the accused in a bullying and harassment investigation.


“Whistleblowing” – Just Another Investigation?

The Protected Disclosures Act 2014 (the “Act”) provides protection to “whistleblowers” in Ireland. The increase in employees making protected disclosures under the Act has resulted in a rise in contentious allegations in the workplace which, in turn, has led to an increase in internal investigations.

Following this legislation, employers have introduced specific procedures to deal with protected disclosures. However, it is important to note that an investigation in the context of a protected disclosure is still an investigation which should be dealt with in accordance with the relevant procedure. If an employee makes a disclosure under the Act, an outline of the next steps are as follows:

  1. Follow the appropriate internal procedures in place (whistleblowing policy or other relevant policy);
  2. Develop a better understanding of the information that has been shared by the employee;
  3. Determine the scale of the issues raised/allegations made and decide the appropriate personnel to manage the investigation (exclude any person who is directly connected to matter);
  4. Report any suspected regulatory breaches to the regulator and/or review any potential reporting requirements in accordance with the Criminal Justice Act 2011 (as amended); and
  5. Keep a record of any Protected Disclosures that are made (public bodies are required to report the number of disclosures made and having a record would assist with this).

It is important for employers to note that, once an employee makes a Protected Disclosure, they are no more than a witness in the investigation and should not be involved as a key party to the investigation, unless he/she has evidence in the matter which would not otherwise be known to the investigations team. The Act is there to protect an employee’s rights when making a disclosure to their employer and does not provide them with an additional right to be intrinsically linked to the investigation – this is often a mistaken belief on the part of “whistleblowers”.  

Under the Act, the identity of the “whistleblower” must be preserved insofar as practicable. An employer must not disclose any information that might identify the “whistleblower” unless the “whistleblower” consents to such disclosure, the identification of the “whistleblower” is necessary for the investigation to be carried out, or the disclosure is in the public interest or is required by law. See previous article on 

Also of note in the context of protected disclosure, on 16 April 2019, the EU Parliament adopted the Directive on the protection of persons reporting on breaches of Union Law. The Directive, once implemented, will allow a more uniform approach to whistleblowing on certain grievances in relation to EU law. As Ireland already has a comprehensive Act implementing whistleblowing measures, protections and procedures, the Directive does not diverge significantly from the Act as it stands. (You can find further information on the Directive here.)


Right to Legal Representation in Internal Investigations

The right to representation in internal employment procedures is one which gives rise to much contention with employers. Often times, it may be preferable for a vulnerable employee to have access to a solicitor in the context of an investigation. Involving lawyers, even at an early stage, can insulate the employer’s process from challenge, as it is not as easy for an employee to raise issues with an investigation at a later stage in that case. This is a matter that may need to be addressed on each occasion depending on the individual circumstances.

A lot of controversy has existed around whether an employee has a right to legal representation in internal investigations in the workplace, which has since been clarified by the Supreme Court on Monday 11 November 2019 in Irish Rail v McKelvey3. The Supreme Court upheld the Court of Appeal’s ruling and found that Mr McKelvey was not entitled to legal representation and that the formal rules of evidence which govern civil or criminal proceedings did not apply.

On the question of whether Mr McKelvey should be granted an injunction by the High Court in order to prevent the disciplinary hearing from going ahead without legal representation, the Supreme Court held that a court should not intervene on an internal disciplinary process prior to the employer making a finding in the matter, unless, something had occurred that was sufficiently serious enough to obstruct the right to fair procedures and natural justice, which would necessitate the need for a court to intervene.

The Supreme Court reached the decision that Mr McKelvey had adequate representation, through his trade union, and as such, reaffirmed that the approach to the question of legal representation in disciplinary matters is as set out in Burns, being that there was no right to legal representation at an internal disciplinary hearing other than in exceptional circumstances.

The Supreme Court did not reject the notion of legal representation potentially being required in certain circumstances in disciplinary matters and held that “legal representation is only required as a matter of fairness in exceptional cases”.

Although the Supreme Court has clarified the position of an employee’s entitlement to legal representation in McKelvey which is to be welcomed, employers are still advised to exercise a level of caution and to assess internal employee issues, whether investigations or disciplinary hearings, on a case by case basis, to consider whether there may be exceptional circumstances giving rise to the need for legal representation in a particular case.

For further information on any of these issues, please contact Breda O'Malley at bomalley@hayes-solicitors.ie at Hayes solicitors. 

 

1 In accordance with the Industrial Relations Acts 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order SI 146 2000

2 Code of practice for employers and employees on the prevention of Bullying at Work (Health and Safety Authority); S.I. No. 17/2002 - Industrial Relations Act 1990 (Code of Practice Detailing Procedures For Addressing Bullying in The Workplace) (Declaration) Order 2002 and Employment Equality Acts 1998 code of practice harassment order 2012 SI 208 of 2012.

3 Irish Rail v McKelvey[2018]IECA 3486

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About the Author

Breda O'Malley
Breda O'Malley

Breda practises in both Employment and Commercial Law and is Partner and Head of the Employment Law team at Hayes solicitors. Breda has trained and qualified as a mediator with the UK based, internationally renowned Centre for Effective Dispute Resolution (CEDR). Breda practices as a mediator of commercial, employment, boardroom, charity trustee and shareholder disputes.