by Laura Graham, Partner in the employment law team at Reddy Charlton Solicitors
Workplace investigations take time and effort. Sometimes it is tempting to skip the investigation stage and move straight to the disciplinary stage when you just “know” that an employee is guilty of wrongdoing. The consequences of such a course of action can be serious for an employer. Here’s why:-
The Law
The right to fair procedures (which generally includes an investigation) is contained in Article 40 of the Constitution. This right extends to employees. In addition to the Constitution, the Unfair Dismissals legislation specifically states that in deciding whether a dismissal is unfair regard will be had to the reasonableness of the conduct of both the employer and the employee.
Conducting an investigation demonstrates reasonableness on the part of the employer.
Some potential consequences of not conducting a workplace investigation:-
Unfair Dismissal – Even if an employer has good and valid reasons to dismiss an employee the dismissal could be deemed unfair if the correct procedures (including an investigation) were not followed. This could result in an award of up to 2 years remuneration as compensation to an employee.
Injunction – An employment injunction may be granted where an employee is dismissed in breach of the employee’s constitutional right to due process and fair procedures. If an employer were to lose an injunction application, they will generally be liable for its own costs and those of the employee. These costs can be hefty. The injunction may also prevent the employer from proceeding with the dismissal without conducting the investigation, for example.
Internal Issues – If an employee is dismissed, without any investigation, and the employee appeals that dismissal, it is likely that the entire process would need to be restarted, as it was flawed from the outset and would be deemed unfair. This can be costly and time consuming for an employer and can affect morale within the business, diverting managers from their “day job”). External investigators may need to be appointed as those involved in the flawed process cannot be involved in the new process.
Those conducting the investigation need to know what they are doing!
Investigators need to be trained and know what they are doing! A poor investigation can be as damaging to an employer’s business as no investigation. The training needs to be bespoke and informed by the relevant company procedures.
About the author
Laura is a Partner in the employment law team in Reddy Charlton Solicitors. As an employment law specialist, Laura has significant experience in assisting employers and employees on the full range of legal issues that may arise during the employment relationship.
As well as providing advice on day-to-day issues such as employment contracts, managing grievance and disciplinary issues, workplace leave, restrictive covenants and reorganisations, Laura also has strong experience in advising on transfer of undertaking situations, and contentious employment disputes before the Workplace Relations Commission and the Irish Courts.
Working closely with the commercial team, Laura is attuned to the importance of seeking a balance between the commercial needs of business and the management of a business’ most valuable resource, employees.
As the firm’s risk management manager, Laura recognises the importance of having robust policies and procedures in place and has strong experience in drafting policies and procedures, handbooks and contractual documents.
Laura is a member of the Employment Law Association of Ireland and is a Registered Trade Mark Attorney.
