Let's Discuss... Workplace Investigations in IrelandPosted in : Webinar Recordings on 11 April 2018
We discuss Workplace Investigations with Caroline McEnery, Managing Director of The HR Suite and HR and employment law expert. Caroline discussed the practicalities of conducting workplace investigations and provides some takeaway tips on how to avoid the common pitfalls. Caroline is a member of the Low Pay Commission and is also an adjudicator in the Work Place Relations Commission. Based on Caroline’s practitioner experience; if anyone knows best practice in conducting a workplace investigation, it's Caroline!
Please Note: This is a direct transcript of our recent webinar. It may not read as well as a written article would.
Caroline: Good morning, Lynsey and good morning to all our listeners.
Lynsey: Caroline, we have chosen five key areas to cover today and then we hope to also deal with a few of the questions that have come in. Firstly, we're going start off by looking at the policy.
Caroline: Yeah. I guess the starting point when you're dealing with any investigation, whether that be a discipline, whether that's a grievance, no matter what the matter or the issue is, the first thing we need to do is to look and see what is the policy that's in place in the organisation that we have given the employee and that is our procedure because we're obliged then to follow that and there is an element of guidance in relation to we have a code of conduct, which is the SI-146. That gives us some guidance around what our policies should include.
The important thing, I suppose, is to revise and revisit your policy because case law and legislation, etc. will advise us in terms of guiding us to update maybe our policy in line with company procedures, etc. So, it is very important we have it in place. It's very important we give it to our employees when we give them their contract of employment when they come into employment with us and it's very important that as managers and as HR professionals the guidance we need when we start an investigation is the first starting point to go back and see what does the policy say because we're obliged to ensure that we follow that procedure when we are starting the process around an investigation.
Generally, the good thing about our policy is the investigation is the last resort. Really, I suppose, as practitioners, we always want to try to nip things in the bud if we can and be proactive in trying to address matters. So, the policy will also guide the employee in relation to the options they have to nip things in the bud. Generally, in a policy, we will have the informal option, which is they can talk to the person themselves or there might be a contact person they can go to.
Also, the policy will generally have an option of mediation and I suppose as a mediator—we do a lot of mediation for companies—I'm a big fan of mediation because the whole idea of mediation is there's nobody right and there's nobody wrong. We're trying to work consultatively, cooperatively and collaboratively to reach a resolution and a way of working that both parties can work on going forward.
But obviously, depending on what the issue is—for example, it might be theft, it might be fraud. Obviously, it's not appropriate to go through mediation or informal route in that regard. For example, if it's two employees, maybe, who have interpersonal difficulties, the informal route or mediation might be very practical and proactive options, but if all else fails, the investigation is what we need to follow and our policy will outline exactly how we intend as a company to follow that.
Terms of Reference
Lynsey: Okay. That's great. So, the terms of reference, then?
Caroline: So, the terms of reference outline very clearly for both the investigation manager and for the employee exactly what is going to be investigated. I suppose it's always really important to remember the terms of reference are not just for the employee who makes the complaint, but they're also for the manager, the employee, if there's another person involved who the allegation is against.
So, the terms of reference gives us the scope of what this investigation is about and also outlines clearly to all parties involved exactly the steps and the process that we'll follow. Often at times, you find if the terms of reference aren't very clear, ambiguity sets in. Obviously, in HR, we're trying to—we have loads of grey because that's the world we live in, but we're trying to avoid grey as much as possible. So, the clearer we are in the terms of reference, the clearer it will be for everybody going forward.
And also, generally, when you outline the terms of reference for the investigation, you may get some objections at that stage, which is the very early stages. So, at least you could deal with them early and address them rather than waiting on—at that appeals stage, you have points being raised that you wished were raised at the outset, so the terms of reference to me are very important to ensure they're crystal clear in relation to what is the allegation and crystal clear in relation to what is the process.
To me, that terms of reference should be in writing and should be given to the parties, both the employee who is making the allegation, the person who maybe the second employee is involved, who the allegation is against, and that's what guides the investigation manager because in investigations, if we are asked by a company, for example, to do an investigation, they'll say to us which role do you think you should play? Should you be the investigation manager? Should you be the outcome manager or should you do the appeal?
Often times, I say, look, to me, the hardest job is doing the investigation because we generally base everything else on that investigation. So, if the investigation starts out flawed by not having a terms of reference that's clear with the correct process in line with our policy, then you're starting with the flawed process. You can absolutely remedy it as you go along, but you'd prefer to start as you mean to continue. So, to me, the investigation manager has the most difficult job and it's really important there's somebody who's trained and is comfortable and knowledgeable in relation to all the elements of what we're covering today.
Rules of natural justice
Lynsey: Great. The rules of natural justice?
Caroline: They're the thing I suppose that underpins everything we do as HR practitioners, not just in investigations, but basically nearly in everything we do. The rules of natural justice, to me, are the foundations that underpin everything. The key principles, we maybe discuss each one, Lynsey, because I think it would be beneficial because they're so important.
The first of the rules of natural justice is you need to ensure that everybody knows the allegation that's made against them and that that's very clear. Again, sometimes, we'd have clients and they'd want us to do an investigation and they'd say, "Look, Caroline, we want you to do an investigation." We let the employee know that morning in advance and we use the element of surprise and when they see you or the person doing the investigation, they realise how serious it is.
To me, you're starting already with a flawed process because in advance, you need to ensure the person when they're being notified about the investigation and the investigation manager, they get the terms of reference and in that, they clearly outline what are the allegations made against them. The clearer we are in relation to those allegations, the better it is for everybody. So, at least the employee then knows what it is they need to respond to, what it is they need to reply to because for me, I'm doing this 20+ years now. The process never fails us. So, if you follow the process, it won't fail you.
Lynsey: Be open and transparent through the whole process, it helps everybody.
Caroline: Absolutely, Lynsey. And making sure that they're clear in relation to what are the allegations that have been made, is fundamental to that. Sometimes, we're maybe not sure ourselves and making sure that when new evidence appears, that we're very transparent in that regard as well. So, the first principle is the right to know the allegations against you.
The next principle then is the person gets a fair and impartial hearing. That's really important in relation to the person who does the investigation because often times, if I'm the manager of the employee and they end up doing gross misconduct or there's a very serious allegation against them, I might be biased because of my relationship with the person.
Lynsey: And unconsciously biased because it's so common to have that.
Caroline: Absolutely. And on the basis that you're dealing with very serious allegations and it's really important that that person gets that fair and impartial hearing and a fundamental part of that is that the person who's involved in doing the investigation and the person who's doing the outcome and the person who's doing the appeal are impartial and we have to ensure that sometimes that means we actually have to outsource it to a company like us or to a different manager in a different division within the organisation to ensure that that impartiality occurs.
The second element of a fair and impartial hearing, I suppose, is that there is separation of the process. A lot of investigations fall down on that basis. The separation of the process means you can't have one person who's the judge, the jury and the executioner. There needs to be somebody who does the investigation and somebody who hasn't been involved who decides on the outcome and somebody, again, who decides on the appeal. It's very helpful for us to look at case law in relation to a small organisation, for example, saying, "God, I don't have those layers of people to do the investigation for me."
And I would always say, consider what the allegation is and the seriousness of it, to help guide you. And second of all, consider, for example, a case where the employee had attendance issues and the employee admitted they were late and the clock system demonstrated that. So, the investigation piece was not as complex as it might be if the allegations were being denied.
So, you've got to consider on a case by case basis in the requirement in relation to separation of process. But always, if an employee objects to the person who's doing the investigation, I would ensure that you consider that and make sure you consider that you consider that in a very thoughtful way to ensure you're not breaching the principles of the rules of natural justice because separation of process is fundamental and often times, as I say, I find that's where when I get to the appeal.
And I might be the appeal authority, that I find that it was the employee objected to the person because they said, "That person has it set against me," etc. and those considerations weren't taken into account and a different person wasn't appointed to do the investigation. So, a separation of process is very important.
Lynsey: That's one of the questions that we received from one of the listeners about what you do when the company is too small to separate the investigation and the disciplinary process. So, would you recommend getting external consultants in like yourselves to facilitate those?
Caroline: Yeah. I think you have to go on a case by case basis. For example, it's somebody who was late and the likelihood is they're going to get first a written warning or a verbal warning, etc. That's a different scenario versus somebody who could ultimately end up losing their job based on gross misconduct. Sometimes, if it's a small organisation, the company has never done an investigation before. So, in honesty, they don't have the skillset within the company to do it anyway, even if they were separating. As we know, the fundamentals of going back and looking afterwards was the investigation done fairly and in line with rules of natural justice?
The right to representation
I suppose the next principle then is the right to representation and the importance of ensuring that in the invitation letter when you outline the allegations against the employee and confirm that an investigation is going to commence based on those allegations—and they are always only allegations, that's important to remember, you have to offer the employee the right to representation.
The right to representation is something you will have addressed in your policy, hence why the policy is so important. Again, you will consider if the employee requests somebody outside of what you've listed as appropriate representatives in your policy. You'll consider that as well.
I suppose the other principles of the rules of natural justice is the opportunity to state your case, which is that you have to do an investigation. So, the employee, you may, as the employer consider based on the evidence the employee is definitely guilty. Sometimes I find employers can be very emotive, especially if it's a breach of trust or somebody has done something highly inappropriate, the employer will say based on that now, we can surely go straight to dismissal. That can never happen. There always needs to be an investigation to facilitate the employee to state their case and give them that right to respond.
The right to appeal
And the final and the last point in terms of the rules of natural justice is the right to appeal. So, for any sanction that is issued, the employee has that opportunity to appeal that to somebody who hasn't been involved heretofore. Again, I suppose, the whole reason why we have the rules of natural justice is that any investigation can have very serious implications for an employee. The obligation we have as an investigator is to ensure that the investigation is done in line with best practice. It is fundamental that it is carried out fairly and transparently.
And if you do the investigation fairly and transparently in line with the process, the right outcome will always occur and you're protecting the company and you're ensuring fairness occurs to everybody else, which is important not alone for that of one employee, but for all the other people in the organisation to see the company reacting appropriately and fairly.
Lynsey: Of course. Just going back to one of those points we talked about the representation and of course, the most recent case on that, the Lyons case, there's a few questions just around what impact that really has on the right to representation.
Caroline: The way I look at each of those is each case turns on its own facts and the Lyons case has very specific facts associated with it. I suppose for me, the right to representation is an important right. Again, I suppose I would consider the employee's request aligned with the rationale outlined at the time.
I think the important thing from a company perspective is you are seen to be considering that in line with case law, also in line with your policy and in line with the SI-146, which is our voluntary code of conduct, which obviously outlines the clause in relation to representation too. But I think it's important when we look at case law to understand that each case turns on its own facts.
Lynsey: You mean that the details are more than you first originally think. We just have a few more questions around representation:
Q. In relation to trade union representation and to what extent can a representative be involved, and can they speak for the employee?
Caroline: So, I suppose for me, it's important that if they want representation, they receive representation. If the employee, by the way, says, "I don't want to be represented," I would document and get signoff on that because it's a very fundamental right. Sometimes I've been involved in investigations and the person has said—I would always emphasise even if they don't bring a representative, "Are you sure you don't want representation? You've been notified that you could have somebody today."
And they might say to me, "I did want my union rep to come, but they haven't been available." So I've had to go ahead. Generally, I reschedule the meeting on that basis. For me, if that's a case that they want it and they couldn't, then within reasonability. Now, it can't be used as a delay tactic either. Some people want to kick that out and kick that out. We'll talk about timelines later, but to me, it's got to be reasonable. To me, the union or any representatives' role is to be a support to the person. If I have questions that I need to put the subject of the complaints, I expect the subject of the complaint will answer those questions because I need first-hand oral evidence from that person.
However, if at the end of the hearing the representative, whoever that might be, wants to say—I'd always give them the chance. For example, they might say, "Look, we want you to reflect on the fact the employee has an exemplary record for the last 15 years. This is the first time they've had a disciplinary, etc." Of course, I will let them outline all of that. If, for example, they want to give me a legal point in relation to something or refer to a policy. Again, take all that on board because the way I look at it is, the more robust your investigation is, the better outcome you're going to have as a result and also, you're avoiding what we've come up as an issue at the outcome or the appeal.
So, I wouldn't ever allow the representative to be the voice and facilitate the oral hearing because I'm interested in first-hand evidence and that's important. I will also allow people to take a break if they need to take a break, etc. But I won't accept the representative to be the spokesperson for the person.
Lynsey: Okay. And then just taking that on a little bit further, somebody's asked:
Q. Do you have to inform the employee of the right to representation during the investigation or simply allow it if they ask?
Caroline: I would always in the invitation letter outline . . .
Lynsey: Through the invitation to investigation?
Caroline: I would always outline in that initial letter that they're entitled to the right to representation and they can bring somebody with them if they wish. The key thing about our HR world for staff is if it's not in paper, it never happened. The paper trail is fundamental to proving that we as employers do the right thing. For example, often times somebody will say to me, "Well, should the employee knew, they could have had somebody with them." I say, "So, how do they know?" They say, "It's in the policy."
So, again, when I'm inviting them to the investigation, I'll attach the policy but I specifically draw their attention to the rules of natural justice. In my letter, the more I've emphasised that, the better it is for me because the employee can come along and say if I'd known how serious it was, I would have brought a representative, but at least I can go back and say look, based on the letter, I clearly outlined that you have the right to representation. At the meeting, I clearly outlined how important it was for you to avail of that. Again, I refer to it, again, in the minutes of the meeting at the outset. I would always encourage that and definitely put it in writing in the initial letter.
The Investigation Report
Lynsey: Great. Okay. And then one that we've received quite a number of questions on, the investigation report.
Caroline: Yeah. The investigation report is back to the concept that the paper trail is so important. For me, why I said the investigator had the hardest job in the separation of process three-pronged approach is because that investigation report needs to be thorough, comprehensive, and detailed. We obviously have outlined the terms of reference for it at the very outside of the investigation.
Now, the investigation report will show the process we followed, the parties we've involved in the investigation, which often will include witnesses because the subject of the complaint may suggest we need to meet witnesses and obviously, we may need to engage with them because at the end of the day, our job is to find the truth and to find the underlying, you know, is this allegation to be upheld or not and making sure the investigation report reflects that we have covered all of that is hugely important. Attached to your investigation report will be the minutes of the meetings you've had along the way with the different parties you've had during the process.
Often times, based on you'd meet the subject of the complaint. Within the next thing, you'll meet a witness and you need to put further elements of that to the witness or subject of the complaint or depending on who's involved.
Lynsey: So, that would be like a second meeting, then? That's one of the questions that somebody had asked:
Q. Can you ask someone to attend a second investigatory meeting with you based on a witness statement?
Caroline: Absolutely. Brilliant question. For me, if you don't show that your mission in this investigation was to get to the truth, then it's a flawed process. Your job is that because often times you'll see an investigation and because the person is doing it on behalf of the company, they'll meet witnesses the company suggests should be met, but they won't meet witnesses that the subject of the complaint has suggested. Obviously, that is a flaw in the investigation.
Ultimately, our job is to get to the truth, whatever truth that is. It is important that we consider all of that. I suppose another element of an investigation can be CCTV footage. It can be looking at records. It can be looking at time reports, it can be looking at documentary evidence, etc. Your job is to take into account any evidence that's either presented from the subject of the complaint from the company, who ultimately will be the person who outlines maybe some of the allegations or the complainant themselves. You have to take into account all parties' evidence. You decide then, I suppose, what weight you put on it after you've collated it all, but it's important to see that you are collating it.
Q. Is there a standard format for an investigation report anywhere people could use?
Caroline: I suppose there isn't really. We, at this stage, obviously, have fine-tuned based on our experience what an investigation report should look like. Generally, we would outline the terms of reference. We'd outline the evidence we'd find in relation to the complaint, etc., and then we would put conclusions after we've done all of that. It is a very robust report. A lot of the reports would be anything from 10 to 20 to 30 pages and then you have appendices on top of that.
So, it is a fairly—depending, again, on the allegation. Obviously, if it's an allegation of something very straightforward, it's going to be very short. But if you have a number of witnesses and it's a very serious allegation, for example, sexual harassment are generally the ones that are very sensitive and bullying is another one that's very sensitive are allegations that result in the person potentially losing their job and theft, gross misconduct, all of those elements can end up in that scenario and making sure that's done correctly is very important.
Lynsey: Okay. Great. Then finally, before we answer some questions, next steps?
Caroline: So, obviously, today, we're only focusing on the investigation. In the process, the investigation managers, the person who'll end up doing the investigation, the next steps of the process then are the investigation manager passes their report to the person who the allegation is against, who is the subject of the complaint and also passes that investigation report to the outcome manager.
The outcome manager then is going to give the subject of the complaint, the opportunity to put forward any additional maybe evidence, commentary, etc. that they may want to put forward for the outcome manager to consider the appropriate sanctions if they're deciding on a section at that stage.
I suppose that is, again, in line with the policy and in line with the procedures. We can't emphasise the importance of ensuring your staff handbook is up to date and is reflective of your actual practices in your organisation because often times, a company will say, "That handbook is there ten years." Since the handbook was drafted ten years ago, we now have CCTV cameras, who now have new procedures, we've now new policies, but they're not signed off or there's no proof, etc.
So, as a consequence, you're leaving yourself exposed. So, it's very important to ensure our handbook is updated and reviewed on an annual basis because not doing that is something that leaves the company exposed and open. Once the outcome manager has made their decision, the final part and step of the process is for it to go to the appeal manager. Again, they're somebody who was separate to everybody else and their job is to facilitate and appeal on an independent basis.
Lynsey: Great. Some of the questions that we've had then, and I suppose an important one:
Q. What is the potential impact of GDPR on workplace investigations?
Caroline: It's my favourite subject. Obviously, we specialise in GDPR and data protection. We're running lots of courses in relation to it, particularly focusing from an HR perspective. We have an upcoming course on the 25th of April here in Dublin and we have lots of them around the country. Ultimately, the big thing about GDPR is HR is its best friend. Between HR and sales and marketing, they're the two main areas. The HR and GDPR element of ensuring you're clear in relation to data access requests.
Sometimes managers send emails to HR or send managers within the department to their colleagues and they might make comments in relation to the employee or a fait accompli even more worrying. That paper trail is subject to a data access request. Ensuring we're really clear and aware of the importance of what is subject to that access request.
Legal privilege still exists, but I think awareness and training for all stakeholders that are involved in anything having to do with HR and particularly investigations is very important because that could be—we could have done an amazing terms of reference, an amazing investigation report, or all the I’s dotted and T’s crossed, and then all of a sudden it's when the subject access request comes in, that it's the paper trail around that shows that actually people were showing they had a bias from the very start and it was a fait accompli and wasn't an objective, transparent, or independent investigation.
Lynsey: Okay. Just one final question very quickly, it's one of my favourites:
Q. Please advise on employees who go on long-term sick leave once an investigation process is started? Do we delay? And if so, for how long?
Caroline: So, the important thing is to remember that the employee often, it's an avoidance strategy from their part that they don't want to deal with the investigation. I'm always very practical in my delivery and my approach. In this regard, the key thing for me is to write the employee and explain, "Dear Lynsey, obviously you're unwell at the moment. I'd like to confirm the investigation is now paused. Once you are fit to return to work, the investigation will continue." For a lot of employees, that's enough for them to say, "Oh god, this isn't going away." To me, it's engaging with the employee while they're absent to remind them.
Lynsey: And it's okay to engage with them when they're absent?
Caroline: It's okay to engage, but it's not okay to hound. Ultimately, I suppose, you may decide we need to send them to the company doctor depending on what it is that's wrong with the employee, but I think you have to ensure you're being fair, and you're being reasonable. I think when the employee knows it's not going away, that's generally—now we have the accrual of holidays while people are on sick leave. You have some employees who will literally accrue the holidays while they're on sick leave and then resign at the end of it. I think you have to be proactive in managing it. Strike the balance with not overdoing it either.
Lynsey: That's great. Thanks very much. Okay, everyone. We're going to have to leave it there. We're actually out of time. We haven't got through all the questions, but maybe we'll look at doing something with those in response. Just a couple of things to finish—we'll hope you complete the survey that will go out in the post-event email along with the link of the recording of the webinar. If you're interested or you don't get to the survey and you want to contact me, you can do so firstname.lastname@example.org and of course, you can contact the HR Suite for further information on their services, thehrsuiteonline.com. You can discover the full range of courses that are facilitated here at the NCI at ncirl.ie.
That's all for today. I want to thank Caroline for sharing her knowledge with us and thanks to the NCI for hosting us of course and to thank you all for listening. We'll hear from you soon. Thank you.
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