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Sponsored by
Supported by
Kevin Langford
Partner, Arthur Cox
Pitfalls in Managing Workplace
Investigations
Kevin Langford, PartnerArthur Cox
Tuesday 6 October 2015
Pitfalls in Managing WorkplaceInvestigations
3
Commencement of Investigation
• Identify stages in the process (investigation, disciplinary, appeal)
• Select persons to conduct the various stages
• Internal or external investigator?
• Draft Terms of Reference
• Follow your own procedures!
4
Conducting the Investigation
• Offer natural justice rights at investigation stage?
• Interview witnesses / notes of meetings
• Gathering evidence
• IT searches
• Reliance on CCTV footage
5
Investigation Report
• Make findings of fact on balance of probabilities
• Make recommendations?
• Issue report in draft?
• Who receives the report?
• Philip Smith –v- RSA (2015) – Employment Appeals Tribunal
6
Holding Suspensions
• Does disciplinary procedure provide for suspension - Wallace –v- Irish Aviation Authority (2012) – High Court
• Is suspension necessary to facilitate investigation?
• Bank of Ireland –v- Reilly (2015) – High Court
• Have a valid reason for suspension - not an automatic response
• Manner of suspension – Smith –v- RSA
7
Disciplinary Proceedings
• Reasonable notice of disciplinary hearings
• Entitlement to full natural justice rights
• Right to representation – legal representation?
• Sanctions hearing only or can investigation findings be disturbed?
• Decision maker must not have been involved in investigation
8
Appeals
•Appeal person must not have been involved in previous stages
•Oral hearing, written submissions or both?
•Interview Appellant only or re-investigate?
•Power of appeal person to overturn sanction/substitute new sanction
9
Miscellaneous Issues
•Bias – O’Neill –v- Beaumont Hospital (1990) – Supreme Court
•What if employee goes on stress leave during any stage of the process?
•Parallel criminal investigation
•Obligation to report to An Garda Síochána/Regulators
•Protected disclosure – five years’ pay