Remote Investigations and Disciplinary Matters - Your Questions Answered

Posted in : Webinar Recordings on 7 January 2021
Caroline Reidy (McEnery)
The HR Suite
Issues covered:

Following her excellent session at the Annual Review of Employment Law 2020 conference in November, Caroline McEnery provides tips and guidance for handling remote investigations and disciplinary matters and deals with your questions around this area including:

  • Recordings
  • Covid issues
  • Issues ref process
  • PIP/Disciplinary
  • Non-attendance

The Recording

Transcript

Rolanda: Good morning, everyone, and welcome to our first webinar of 2021. My name is Rolanda Markey and I'm Learning and Development Officer with Legal-Island. And I'm joined today by Caroline McEnery, who is Managing Director of The HR Suite.

This morning's webinar deals with the issue of remote investigations and disciplinary issues. It's a wee bit different from the webinar we did with Caroline this time last year, in January last year, which would have been dealing with the fallout from the Christmas parties. This was in January 2020. We shouldn't have that many issues this year.

So just to give you a wee bit of introduction to Caroline for anyone who doesn't know her, Caroline is a past member of the Low Pay Commission and she is also an adjudicator in the Workplace Relations Commission. As I said, she is the Managing Director of The HR Suite, which was set up in 2009.

She has completed a Master's in Human Resources through the University of Limerick. She is CIPD-accredited as well as being a trained mediator.

She has worked across various areas of HR for over 20 years including in the Kerry Group and the retail and hospitality sector where she was the Operations and HR director of the Garvey Group. So, therefore, she is a very, very experienced investigator.

She speaks widely and writes articles and papers on thought leadership in relation to the future landscape of HR and the challenges and opportunities that presents for employers and employees.

So, in today's webinar, Caroline is dealing with a lot of the questions that arose during her session at our Annual Review last November, which was really excellent and was full of lots of good tips and advice on how to not only conduct an investigation appropriately but how to do that with the challenge of trying to do that online. All of those questions have been grouped together and Caroline is going to address them in today's webinar.

Feel free to ask any questions using the question box facility there on your screen. Hopefully, Caroline will have addressed most questions but we will have time at the end for a few additional questions. So feel free to send those in to us.

And just before I hand it over to Caroline, I just have to do my plugging of the Legal-Island bit. You will see there that there is a special offer for webinar attendees with our Employee Wellbeing eLearning Toolkit, which has a whole range of issues. And obviously, mental health is a huge concern at the minute. I must admit the thought now of another six weeks of home working and home-schooling at the same time fills me with a bit of dread. So I think we can all do with addressing our well-being issues. There will be some information in the follow-up email on how you can access that eLearning.

So, over to you, Caroline. Caroline will take you through a wee bit about what the HR Suite does, and then take you through her subject for today.

Caroline: Thanks so much, Rolanda. Good morning, everybody. Myself and Rolanda are really delighted that we have 691 people registered for this morning's event. And it just shows how topical and important, I suppose, procedural HR-related issues are for all HR practitioners. I'm delighted to be with you this morning.

As Rolanda said, I run a business called The HR Suite. Many of you will know of us. We basically provide outsourced HR advice to clients throughout the country. And I suppose we specialise in assisting organisations with investigations, training investigators. We also act as outcome managers and appeal. We also do things like mediation. We help with best practice in terms of drafting your policies, your procedures, and general HR-related queries, as well as helping you represent a third party. So for any of you that are interested in finding out more about our services, we'd be delighted to chat to you and to give you a little bit of information in relation those.

So, in this morning's webinar, as Rolanda outlined, we're focussing very much on investigations, and what I covered in the Annual Review and building on that. We got a phenomenal amount of questions in from the Annual Review in terms of additional feedback people would like, and we've culminated all of your questions and queries into this morning's session.

We've also drafted a checklist, which I'll talk to you more about at the end. There is a checklist available that you can download and Legal-Island will also send it to you after the webinar. So it's a really good tool to help you if you're doing an investigation, ensure that you do it accurately and you do it well.

So the key areas I'm going to cover are the ones I've outlined here. And without further ado, I'm going to get started.

As Rolanda said, feel free, if you have any questions that you would like to add, to do so. We'd be delighted to answer them towards the end of the webinar.

Requirements for Investigations

To start with, I suppose there's such a vast amount of different types of requirements for our investigations. A lot of those are from the disciplinary, the grievance, or the bullying and harassment policy. And one of your questions was that the person noticed an increase in allegations around bullying and harassment and the grievance procedure being used. And as a result, they were saying, "Do I think that that's to do with miscommunication?"

I suppose blended learning and remote working is here to stay. And I do think one of the big requirements we have is to help train our managers better in relation to managing people remotely. It's a huge challenge for them to be doing this in the environment we're in at the minute. Rolanda mentioned mental health issues. We've issues around productivity, issues around performance, etc., and the importance of making sure that we train our managers in relation to managing our remote workers.

We're also coming into the season that we would be doing our one-to-ones. And it's really important that, again, we ensure that our one-to-ones are very much focussed at doing a check-in to see how the person's work arrangements are working. Obviously, we have to do a risk assessment to ensure remote working is working well for them.

So there are lots of practical steps that we can take to ensure that we do try and reduce the potential issues in relation to miscommunication, in relation to grievances, etc., by trying to increase the communication piece. That will be one good starting point I would suggest.

Recording Remote Hearings

The next area that you mentioned and came up a lot is the whole area of recordings. So there have been a lot of queries in relation to whether or not we would recommend that you record the remote hearing, because some of you said, "Should we hold off altogether and not do the hearing until we're able to do it in a one-to-one setting in a meeting room, again, incorporating social distancing?" And I would say that, ideally, you would get the investigation done sooner rather than later.

Timeliness is often one of the key fundamental issues that makes the procedural process flawed, and means that the stress and anxiety for all the parties that are involved has increased. So I would say, 99% of the time, try and get it done as timely as you can, including now via remote hearing.

In relation to recordings, I suppose I would suggest that, first of all, if you are recording the hearing, that needs to be built into the terms of reference and you need to assess what your policy says.

We mention the policy time and time again, and you'll have heard us talk about that in any of our HR updates, the importance of ensuring that your staff handbook and your policies and procedures for your staff are up to date and are reflective of the remote setting that we're now living in.

So, in other words, rather than your meetings, and your grievances, and your disciplinaries, etc., being held on a one-to-one, that you incorporate the fact that it can be done remotely if required.

I would suggest that if you really want to record it, you absolutely can. You need to ideally get consent from all the parties. And personally, I wouldn't record unless I got consent from everybody, because you're getting into GDPR and you're getting into challenges in relation to, "Well, I didn't consent", etc. So, if your policy doesn't facilitate it, I would definitely use consent as the next step.

If your policy allows it, and if the person still doesn't consent, I think you need to assess what is your purpose then in doing it? We will all have either a good note-taker or you'll be taking your notes yourself. I use an exceptionally good note-taker. In our office is a Dictaphone-trained typist, so she can type as we talk, and her minutes are exceptionally accurate. It's a really good resource to have in a scenario like that.

And what I do is I don't record any of my hearings. Instead, I explain that, "We'll be taking notes. When the investigation is done, we'll read back the notes to all the attendees, and if there are any typos that need to be corrected, we'll allow them be corrected at that stage". And then we will email them the notes after the meeting for their copy and record as well.

Normally, if it was a face-to-face meeting, I would get them to sign the notes at the end of the meeting. So this is probably the next best thing that we can do in relation to that.

I think the data protection piece, more and more people are coming back to say, "Look, I want a copy of the recording". And I would offer that at the outset, if you are recording it. All the parties get it.

We also have an issue where employees are doing covert recordings, and they're recording the hearing, even though at the outset it's been explicitly said, "No recording of the meeting is permitted for confidentiality purposes". A lot of organisations are concerned that the recording will then be sent on to other people and breach of confidentiality could occur, especially in the current social media age that we live in.

So, again, the issue is some of those covert recordings have then been transcribed and then have been, I suppose, admitted as evidence in a third party at a later date. So I think the recordings piece, be very clear and make sure you address it at the outset of the meeting and make sure that your policy and your terms of reference reflect what it is you need.

And don't forget that outside of the recording, you need really good notes. So I wouldn't personally just rely on the recording. I think the notes are really important. I think it's also really important to read the notes back at the end, especially for complex hearings, just to make sure that all parties are clear in relation to their sign-off.

And again, it avoids time delays, where otherwise, if you're emailing the notes to somebody, it could be a week before they come back. It's delaying the process for you that you want to try and do as timely as possible.

Covid-related Issues and Remote Hearings

So the next area we're going to talk about is COVID-related issues. I suppose since last March . . . will I ever forget it? As I'm sure all of you have had an equally traumatic year. We ended up being lucky enough Fáilte Ireland contacted us to assist them and do webinars, and videos, and prepare documentation for their clients. On Saint Patrick’s Day last year, I was in Fáilte Ireland, recording those. I knew this is serious on the basis of the urgency associated with it and the impact on businesses.

And as a business ourselves, the year has been focussed very much on helping businesses to still do their HR in the backdrop of COVID. So I suppose as a result, we're busy. We're in the process of recruiting at the minute, which is a good complaint, to meet the business requirements that have increased accordingly.

I suppose COVID issues, when you pare it back, obviously, there's everything to do with COVID in general. But when you talk about investigations, for me, one of the biggest issues now is to ensure that we don't delay things and prolong the process for all parties due to COVID. Ultimately, now, we could be extending that period of time for a very indefinite period of time at this stage by the time you get everybody back to be able to do it.

Technology Issues and Remote Hearings

Obviously, that presents technology issues, where you may have staff members who don't have appropriate access to technology, they don't have a confidential space where they can partake in a hearing, they may not have appropriate broadband, etc. So one area that I would suggest is that you try and identify what is the appropriate and most straightforward technology that you can get the staff member to use. How can you facilitate whatever problem they have in terms of whether that's access, whether that's broadband, etc.? How can you remedy or address that problem for them to try and make it possible for them to partake?

I would also always do a trial with anybody and offer that in the invite letter. And normally, we do the trials. We do the trial with them in relation to making sure they're comfortable in relation to the technology so that I as the investigator am not spending any additional time with them for fear that anybody could be alleging that any additional conversations occurred.

So, when you're doing your technology trials, ideally, that shouldn't be done with the investigator and it should be done in advance. So again, you're making the person comfortable and relaxed in relation to using the technology.

Some of you have asked which technology is best. I suppose because we're external investigators that would be working on behalf of organisations, we use Microsoft Teams, we use Webex, we use Zoom. Personally, I find Zoom is the one that works most easily in terms of the employees finding it easiest to use. And we find that it's very user friendly in terms of good camera, etc., because we would insist that everybody keeps on their camera unless the technology really fails. Again, we would have done a test in relation to that to make sure the person is clear and comfortable in relation to using that.

So, again, in the terms of reference, you're going to reference which technology you're obviously going to do your trial, as I mentioned. But try if you can to make sure that that doesn't become a barrier if you can avoid it.

Obviously, it goes without saying in relation to if you have people who are absent due to COVID or other employees who may have underlying health conditions, etc., even though they may not be able to attend back at work, they should be able to partake in the investigation. And whether COVID or else, we would always ensure that we get a medical assessment to ensure the person, if they are out sick, whether they can partake or not in that investigation. I suppose that's really important in relation to ensuring that that's in place.

Terms of Reference For Investigations

The other issues then, as we talk about issues regarding the process, for me, one of the biggest issues is core terms reference, or a lack of a terms of reference. For me, the terms of reference is a really crucial document. And I'm going to talk to you about some of the points that you've raised in relation to issues.

So one is if the parties won't accept the terms of reference. I suppose, for me, once you have done a fair terms of reference, if the person has legitimate concerns in relation to those terms of reference, we'll consider them and we'll consider them in line with the SI146, which you know is code of conduct in relation to discipline or grievance. And we'll also consider it in relation to our own policy. If it's a reasonable objection, we'll try and see, "Can we remedy it?"

But also, reasonableness needs to work both ways. We've had some case law where an employee objected to a specific investigator, and this investigator, one example, she was a union official in a previous life and had some dealings in a standing capacity, and there was an objection to her as the investigator. Again, the adjudicator, in that case, and it was a judiciary recommendation, said, "Look, reasonableness has to come into play". And the person was right to say that they felt they could independently conduct that investigation because it wasn't an immediate conflict of interest.

If there is a conflict of interest raised as a concern, then you have to treat it really seriously. And that's often where internal investigations can have a serious issue in relation to process where the person would say, "Look, I'm not happy with Caroline doing the investigation. She's my manager, and I don't feel she'd give me a fair investigation because I don't feel she likes me or she's not fair to me already. She'd only be delighted to find fault". So, if something like that is raised, you would be expected to ensure that the investigator is an independent person.

You have two options. One is that you would get an external investigator in to do the investigation. And depending on the seriousness and the complexity of the investigation, that's something obviously a lot of organisations consider. And the second option is that you would train an internal panel of investigators in your organisation.

We obviously work with a lot of organisations to train investigators. It's a one-day course. We normally break it into two modules. And the cost of that course is approximately €2,000. You can have up to 12 people on the course, so it's good investment in your organisation if you need to have people available to be able to do investigations, to be an outcome manager, or to do an appeal.

It's not acceptable to just take somebody from their day job and expect that they can do an investigation in line with the code of conduct, in line with the policy, etc. And generally, that's where a lot of the procedural errors occur. So it's really important that we try and ensure that we remedy that by having really good terms of reference and, without doubt, a trained investigator, because the trained investigator really does make a significant difference.

We spoke about the policy and ensuring that the policy also is updated and is reflective in terms of ensuring that the person gets the evidence well in advance. It addresses the note-taking. It addresses the recordings. And also, at the end of the investigation, I would ask, "Is there anything else that a person would like to add?" and just to make sure that you're happy with the process that we did today so that they can then say, "Well, no, actually, I felt the camera was in and out or I felt I couldn't hear you".

They get that opportunity to say that at that time, rather than at the maybe outcome manager stage or at the appeal stage, that they will then come back and say, "Well, actually, no, I wasn't happy because I didn't get that. I had an issue and I didn't get the opportunity to raise it". So that's a really good way to do it.

Maintaining Confidentiality During Remote Hearings

Another point that you raised is how can you ensure that there's nobody else in the room. So in the policy, obviously, we'll be clear in relation to who you can have with you at the meeting. And we'll also be really clear on the fact that it has to be treated confidentially. You can't have anybody that you shouldn't have.

And you will guess if there's somebody else there. You might have a sense that they're looking at somebody, or somebody might be prompting them, etc. So, if that's the case, I would stop the investigation and I would just say, "Caroline, I just wanted to make sure that you have nobody present with you other than your representative who's on the Zoom here with me, because you're not permitted to have anybody else in the room with you for confidentiality purposes". I'd ask the person just to clarify that that's the case.

I suppose, to me, the investigation has to be based on trust, so I wouldn't ask them to scan the camera around the room. Even though I appreciate that is an option, I think it's a much better approach that we're doing it based on trust, the same as the covert recordings. We've all been in investigations where you feel that the person's phone is potentially recording and all you can do is reiterate the fact that, "Look, it's designed to be a confidential hearing and it's not to be recorded, etc. And I'm asking for your trust and commitment that that's the case. I'd like you to clarify that you're not recording the hearing and I'd like to clarify that there is nobody else in the room".

And ask them to verbalise that. Ultimately, I suppose by them verbalising that, you're capturing it in the minutes, and you're reminding them of those confidentiality pieces.

Preparing for the Unexpected in Remote Hearings

I suppose other issues with the process, we call them teacup moments, thinking correctly under pressure. What that means is prepare for the problems that are going to occur, because it's very unusual that you will have an investigation that runs smoothly without teacup moments occurring. So what could go wrong? Prepare for that in advance. So what happens if the camera's not working? What happens is the broadband isn't working? Will you allow the person to dial in?

I had a scenario where the person said, "Look, I'm happy to do a call instead of doing the Zoom". But then when they had done the call and they had confirmed that they were happy, at a later stage, they had said, "Well, look, I feel I was disadvantaged because I didn't have Zoom. I had a call", where the outcome manager was able to go back and say, "Well, look, how were you disadvantaged? Also, from the notes, the investigator clearly asked you, 'Would you prefer to postpone?' And you were the person who suggested, 'No, I'd like to go ahead with a call'".

So make sure that if something like that was to occur, that you're actually recording it in the minute and you're making sure that you're getting that person's commitment so that it's not going to be something that presents an opt-out challenge at a later date where they may raise it as an issue even though you've tried your best to address it.

I suppose the other piece, for me, is the importance of providing support to all the parties. And that's never been more important as it is now. Support for the person who is raising the allegation, support for the person who is the subject of the allegation if that is the case, and also support for the manager of the employees involved.

For a lot of people, we would have an employee assistance programme in place. And for a lot of people, they can feel that they have nobody to go to. So each person should have a designated person that they can go to, to ensure that if they have queries, if they have concerns, and they'd like to get anything addressed, that we direct them to a specific person.

I suppose that should commence from the very beginning once the complaint is presented to the employee. And at that stage, we try as much as we can to address that and encourage them to use it, and if they need any other supports, to encourage them also.

I suppose other things to consider are some of the other barriers in relation to . . . whether that might be a language barrier, that might be comfort with technology, etc. There are new and additional concerns we may need to consider.

And it's really important that you ask the employees, "Look, are there any other issues that you're worried about that we can try and see if we can remedy or alleviate at this stage?" If they're very anxious about whether the technology will work or not, then ultimately that can prevent them potentially being able to participate fully in the actual investigation meeting.

Discipline and Performance Improvement Plans

So I'm going to now cover some more of your questions. And one is in relation to the PIP and the disciplinary. This question is linked to "If we do an investigation, can we then go straight into the performance improvement plan, or can we go down the road of disciplinary?"

It's important to understand what context and what terms of reference your investigation was designed to achieve. So, if you're investigating poor performance and the person is clear that the terms of reference and your policy cascading from the policy to the terms of reference explain that, "We're doing an investigation to confirm, for example, that you had that many number of errors", or you are that number of days late or whatever other performance issue might be the case, if that was the case and the investigation confirms that, then you would enter the performance improvement plan as the next step. And if that is the case, that's perfectly fine. Alternatively, for other policies, it may be that you go down the road of disciplinary.

Obviously, we're always all about improvement rather than going to disciplinary. And for a lot of people, we find that if you go down the road of performance improvements, you generally get the person to realise this is serious and their performance improves.

I believe a performance improvement plan should be short, over a couple of months, not over an extended period of time. I have found that for organisations that have a very extended period of time for their performance improvement plan, the employee ends up going out on work-related stress very frequently because of the stress of the longevity of the plan. So, again, just assess the length of time.

Also, I suppose we have to be very realistic now in relation to the specific challenges people have had in 2020 and continue to have going into 2021. And if people are particularly stressed due to home-schooling, childcare, vulnerable family members, their own health, COVID in general, that all has to be taken into account.

So I would say tread carefully before you go down the road of a performance improvement plan and try and do all we can from a support and a coaching perspective before it gets to that.

That's why I think training our managers . . . and we've never trained more managers than we did in the last 12 months. It's a huge focus for a lot of our organisations now in up-skilling their managers, because a lot of managers are feeling they're not getting enough training and support in the role that they have at the moment. So I would say start there and then go from there.

The other question that was raised is "Can you rely on the investigation report for the disciplinary if other issues are raised at the outcome meeting in relation to the investigation report?" And I would say we need to take every case on a case-by-case basis and each case turns on its own facts.

If it's a case that the employee he has said, "Well, I feel the investigation was flawed because I asked for a specific witness and the person didn't talk to them", or, "I asked to see the CCTV and I wasn't given the opportunity" there are procedural flaws that occurred if that was to happen with the investigation. And if that is to happen, when it gets to the outcome stage, the outcome manager would be obliged to remedy those flaws before they proceed. And again, it depends on the terms of reference as to how that would be done.

Using External Investigators – Considerations

That's why when organisations ask us, "Okay, we'd like you to be involved" . . . again, one of your questions is, "What if you're a small organisation and you don't have trained investigator outcome manager and appeals manager, or we don't have people in terms of separation of process that would be independent of each other?" That's why, I suppose, organisations will either get the investigators trained, as I mentioned already, or will use an outsourced resource like ourselves.

But if you're deciding, "Will I get the outsourced resource to do the investigation, the outcome, or the appeal?" there are two factors that's going to decide that for you.

One factor is going to be expertise, in terms of do you feel that this is so complex that it needs somebody external to do it, or have I got the internal resources? You might have one person internally who can do, for example, the investigation, and you may get somebody then external to do the outcome or the appeal.

The second factor is going to be cost. And in general, the investigation by miles is the most important for definite. If you don't have the foundation of the investigation right, everything else is not going to be right as a result. So you need the investigation to be right.

The investigation in general, again, it's very hard to gauge because as you all know, how long is a piece of string? The complexity of an investigation can be any length, but on average, €2,500 would be an approximate average cost to get us to do the investigation for you, depending, again, on the complexity, the number of witnesses, etc.

However, to do the outcome or to do the appeal may cost you €500 for either of those because it's a much more straightforward process once a good investigation report has been done. The output of the investigation is that report, and that's why that report is so important, that it is a very detailed and very thorough report.

So that's the question that you asked in relation to cost.

Another question in relation to what if any of the parties say something to allege somebody else has done something out of the way, can you include that? And for me, the answer is no. All you can do is include the minutes as they're said to you, and then it's up to the organisation when they see the investigation report to consider whether or not they want to commence a separate investigation into any other wrongdoing that's been alleged.

However, it's not for you to redact anything from the report. You'd want a very strong reason to decide that you're going to redact something from the report, which may be something on a case-by-case basis that you do consider. But it's important to note that we can't exclude information.

Obviously, if you're asked under the data protection . . . or freedom of information, depending on the type of organisation that you have. But from a GDPR perspective, if somebody comes and asks for a copy of their data and their personal data, obviously, they're entitled to get whatever data we hold. And again, that's in a situation where you may be redacting some of the information.

However, be clear in relation to ensuring that your minutes and that your notes are reflective of what has been said, because otherwise, one of the parties will come back and contest that we did that for a specific reason.

Employee Does Not Engage in Process

So the next query you had is in relation to non-attendance. For that, it's what if somebody is refusing to participate. And for the moment, in terms of physical hearings, there are obviously very valid and reasonable reasons as to why that would be the case. However, in relation to remote hearings, I think you need to really drill into the non-attendance reasons.

So, if that's illness, that you're getting at an independent medical report. Not to see if they're fit to return to work, but just fit to be able to partake in a remote investigation.

If that's to do with technology, do a trial run.

So whatever the non-attendance reason, I would say we have to do our best. And sometimes the non-attendance is to do with a representative not being available for prolonged periods of time. Then I would say if you've made all reasonable efforts, they would need to get an alternative representative. Timeliness has an impact on all of the individuals that are involved, not just on the subject of the complaint. The complainant, the manager, the business, etc., are all being impacted, and we need to be fair to all of those people.

Any other points, then, I think we've covered all of the points in relation to the points that you've raised in terms of queries prior to today.

The main other thing I'd like to do is just let you know that we have a checklist that we prepared. And I'm briefly going to just outline the key points in relation to the checklist. I would recommend all of you to download it. You can download it on the link available here on the webinar, and also Legal-Island are going to email it out to you after this session.

This checklist we prepared for ourselves to be able to ensure that we have good procedure in relation to remote investigations. It's a really user-friendly checklist that you can see there, and you're literally just picking the box. And what it does as well is when you save this as an investigator, you can ensure that you've met all the obligations that are expected of you.

So it starts and talks about your policy, making sure that it's up to date and making sure that you've updated the correct policies in relation to that. Obviously, we can assist if anybody needs advice in relation to that.

Looking at your code of conduct. How will that work? Looking at your IT in advance and making sure that you considered any IT requirements that are required. Looking at any objections that have been raised. Looking at employee supports and making sure they've been offered at the outset.

Then it really covers all of the elements that you need to cover in relation to the investigation, including considering any teacup moments that might occur, that you need to think correctly under pressure and prevent.

It literally takes you through the entire process until you get to the very end. So I hope you find that investigation checklist useful. As I said, Rolanda is going to organise to get that sent out to you.

I suppose the final point before I pass you back to Rolanda to see if we have any additional questions. Obviously, I mentioned for people who are interested on Legal-Island webinar today, we are offering training for our managers, etc., and we're delighted to offer a reduced discounted rate for anybody who's interested in getting our assistance in relation to any of the elements that I've covered off on today's webinar.

So don't hesitate to contact us. You'll all have our contact details already, and Rolanda has them at the end of the presentation as well. But please don't hesitate to give us a call if you've any queries that we can help with.

We do also advise on a . . . look, you don't need to sign up on a retainer. We advise on an hourly rate basis also. If you have specific queries that you'd like a definitive answer on, we'd be delighted to help you.

So, over to you, Rolanda, if you have any questions additional to that that we can cover off before we finish.

Should a Disciplinary Hearing Be Postponed Due To Sickness Absence?

Rolanda: Yes, thank you so much, Caroline. Some really useful advice in there as we're all trying to navigate through the uncertainty. I suppose we'd all hoped that we would be back in the workplace by now, but that's not to be for a while yet.

Your last point you talked about was non-attendance, and there a couple of wee questions just about that, where someone keeps sending in sort of self certs saying that they're not fit for work. Now, you did address that by saying have them independently medically assessed, but have you had an experience of finding that there's a delay with that independent medical assessment because of COVID, because a lot of normal medical appointments and things like that are postponed? Have you experienced that at all, or how would you deal with that?

Caroline: Yeah, very good point. First of all, I would say rather than going to a GP, you would also always go to an occupational health doctor because they're trained specifically to assess occupational health and whether they're fit or not to be able to engage in the investigation. That would always be the piece that I would ask for rather than fitness to return to work, especially when it's linked to an investigation.

I would say when you have an occupational health doctor, generally, the main providers on the market, there's a bit of availability. A lot of them are very heavily involved in COVID and doing private testing, etc., in organisations that have put that in, but they're still available. It might be slightly more delayed, but as part of the SLA you have with them, generally you will get it within a period of time that's reasonable.

And I still think it's worth doing because if you don't do it, it's likely you'll still keep getting those certs. And all of a sudden, three months have passed and the person who might be the subject of the complaint is now putting in a further grievance to say, "You're causing my stress to worsen because you haven't moved the investigation forward". So, again, it's showing that you've taken all reasonable measures, and I think that will be expected in relation to that requirement.

Notes from Remote Hearings

Rolanda: Okay. Thank you, Caroline. A couple of questions and about notes. The first one is slightly long, if you bear with me. "Where an investigation interview is conducted online, is there a risk of future challenge if the interviewee is not provided with an opportunity to review the notes post-interview before formally signing off on them?"

Caroline: So I think without doubt making sure that the notes are an accurate reflection of the meeting is very important. And how I would advise we do that is two things.

One is, ideally, you all need a Kay in your lives who can ensure that the typist and the person who's taking the notes is a really good proficient person at that job, because that is a skill in itself, especially for very complex ones.

Second of all, I would also always read back the notes to the person at the end of the meeting, so that they can correct anomalies at that stage. And the notes are, I suppose, always going to be an accurate reflection of the meeting, which is what they're designed to be. But when you send the notes to the person, it's not giving them the opportunity to add in additional stuff that they now recollect, and that's where the challenge occurs. Whereas a lot of people, they then after the meeting is over start getting further recollections that they want to add in.

So that's why I would always . . . if it was in person, I would read it back to them when they're in the room and get them to sign it. And in this scenario now, remotely, I would read it back and just ask them to correct any anomalies and confirm it's an accurate reflection of our meeting. So what it does is it avoids that huge issue later.

Now, I will also always send them a copy of the typed version and give them that further opportunity. Because they've had it, then it definitely does alleviate a lot of the issue in terms of sending them a new set of minutes/notes they've never had the opportunity to hear back, which I think is a really important step to include in your process if you don't do already.

Conflicting Medical Advice with Regard to Attendance at a Disciplinary Hearing

Rolanda: Okay. Just a wee bit of a follow-up. Obviously, the whole medical assessment is a bit of an issue for a lot of people because we've had a few questions in relation to that. So, Caroline, in your experience where you've had GP reports saying one thing, "No, Rolanda is not fit to attend a remote hearing", but the independent medical advisor is saying, "Yes, they should be able to attend", what do you do in that circumstance where you've got a conflict?

Caroline: I would write to the employee to say, "Dear Caroline, I'd like to confirm that our occupational health doctor, who is a trained occupational health professional, has said that you're fit to engage in the investigation process. Therefore, we're going to proceed on that basis".

If they come back and challenge it, you may need to get a third independent person to make that judgement. But I find when you go back to explain, "Look, this person is a trained occupational health doctor, and as per our policy, it's . . ." Ninety per cent of policies will say that, "Our occupational health doctor is going to have the overriding and decision", and that, ultimately, you're going to go with that decision.

I find that when you narrow it down just to the investigation and not get into the debate of are they fit to return or not, that helps fast track the process. And a lot of time, the doctor will say they're fit to attend. Some of the time, the reason they're out is the stress of the process. And the process isn't going to go away. It's going to be waiting for them when they come back anyway. So it's trying to move that forward as much as we can.

Rolanda: Okay. We've run out of time here, folks, so I will send the other questions on to you, Caroline, to have a look at.

Handling Remote Disciplinary Hearings

Just to finish off, would the same principles of remote investigation apply, do you think, Caroline, for potential redundancy consultation meetings? So remote meetings doing pre-technology checks, that sort of thing. Do you think the same approach could be used in those circumstances, or do they need to be done in-person?

Caroline: We've had a number of clients who have done TUPE over the last number of months and are continuing to do it as we speak. And we've tried to ensure that it's done via social distancing. But in the majority of situations, obviously, we've got to look at what level we're at. In Ireland now, we're in the tightest form of lockdown. So that has to take overarching . . .

But I think we have to try and personalise it as much as possible. You might do additional letters. You might do a video that's sent to everybody, and then facilitating one-to-one queries and sessions afterwards with the employees and the appropriate people.

But I would enhance the amount of communication to make the person feel comfortable so that they're getting the letters, they're getting the video, they're getting the one-to-one opportunity, etc. So they really do feel, "Okay, we've got restrictions, so we can't meet you, but we're trying our best to ensure that you're getting as much communication as you can". I think that reassurance, over-communicate, would be my advice in that regard. Meeting requirement by doing it remotely at the moment.

We have obligations in terms of ticking the boxes with the legislation, but more importantly, we have obligations of make sure from a morale perspective we're bringing everybody with us on this journey. And that's why personalising it as much as we can . . . I think you can't beat the videos. I think you can't beat facilitating the one-to-one meetings, etc., as well as additional correspondence as well.

Rolanda: Okay, Caroline, thank you so much. You've been listening to Caroline McEnery from The HR Suite. Thank you once again, Caroline, for your expertise in this area.

We will be sending you a follow-up email, which will include Caroline's checklist.

Just before we go then, we have a couple of more webinars coming up in January. On next Thursday, we will be doing a webinar with Duncan Inverarity from A&L. And again, he presented at the Annual Review. It's a case law and overview with him.

The 21st of January, then, we also have a follow-up with Jennifer Cashman who also presented at the Annual Review in November.

Caroline's contact details are on the screen if anybody wants to get in touch with The HR Suite.

Thank you all for listening, and we'll see you again soon. Bye-bye now.

     

This article is correct at 07/01/2021
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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