Investigations and Disciplinary Action – Q&A

Posted in : HR Updates ROI on 20 January 2021
Caroline Reidy (McEnery)
The HR Suite
Issues covered: Discipline and Grievance; Investigations; Redundancy Consultation; Performance Management

Should recommendations be included in a draft investigation report – being sent to parties involved in a bullying complaint?

The Code of Practice on Addressing Bullying in the Workplace outlines that both parties should be given the opportunity to comment on the “findings” before a complaint is decided upon. This process has been generally adopted into workplace grievance procedures. There is nothing procedurally unfair about providing the recommendations in the preliminary report as these too can be edited with the final draft. 

Would you recommend including the policy that is allegedly breached in the Investigation invite pack?

Absolutely – the employee needs to be made fully aware of the allegations against them and be given any evidence in advance of the investigation. Any appropriate policies which the employee has allegedly breached would fall within this scope and it would be important to provide it in advance.

What is the correct terminology for the investigator to use in their investigation findings report if recommending a disciplinary hearing?

In Disciplinary Investigations where Investigators will be making recommendations, the following is appropriate;

These findings will now be issued to the Disciplinary Outcome Manager who will conduct the outcome meeting, review all evidence and he/she will then make his/her own independent decision regarding an outcome.” 

What is a reasonable time frame for the entire process, from investigation to disciplinary action taken?

This will depend on the circumstances of the case and the complexity of the issue. Additionally, it will depend on whether there are any other internal or external witnesses to meet as part of the process. For the interest of all parties involved, the process should be given undivided attention and completed as soon as reasonably possible. Any delay in timeframe should be justified and a table indicating the progress dates of the process should be included in the investigation report. Internal processes should not be protracted over a matter of months. 

Redacting notes – should minutes of meetings be redacted and if so when? 

Notes of formal proceedings would not normally be redacted, unless the context of the meeting relates wholly to someone else and is not in any way related to the complainant, or the subject of the complaint. Additionally, the information redacted cannot be information which lends itself in any way to the investigation or restrict either party from stating their case or defending their good name.

Should PIP come first in majority of cases followed by Disciplinary where PIP does not resolve issues? 

Yes, Performance Improvement Plans (PIP) are a formal link to the Disciplinary process where an employee’s performance is not reaching satisfactory standards. The disciplinary hearing will follow a PIP where an employee has subsequently failed to improve on the areas identified for improvement. However, nothing in the PIP process will disallow a separate disciplinary process from being completed in parallel for completely separate matters.

What are the HR considerations for using recording facilities on Zoom or Microsoft Teams meetings?  

Article 4 of the GDPR defines personal data as any information related to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly. Therefore, in the context of recorded videos, if an employee is identifiable from the images, then the images within the recording can be regarded as personal data and the Data Protection Act will apply.

If an employer decides to use the recording option on any virtual platform, they should do so with caution. An employee must be made aware that the employer will be recording the session, why it is being recorded, where it will be stored, who has access to the recording and how long it will be stored for. 

An employee on lay-off does not engage in any communications – how should we handle this?

Avoid text and communicate only through official methods of communication going forward i.e. registered letter or email in order to keep a clear paper trail. At this juncture it would be important to request the employee to get in contact with the business and commence the unauthorised absence process from the date in which you notified them of their return-to-work date.

Can I conduct redundancy consultations remotely? Or should these be done in person only?

Redundancy consultations can be conducted remotely. It is important that the process is meaningful and the employee is afforded the same procedures of a redundancy consultation if it was conducted in person.

       

This article is correct at 20/01/2021
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Caroline Reidy (McEnery)
The HR Suite

The main content of this article was provided by Caroline Reidy (McEnery). Contact telephone number is +353 66 710 2887 / +353 86 775 2064 or email info@thehrsuite.com

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