Varying allegations in the investigation and disciplinary process

Posted in : Seamus Says - Employment Law Discussion on 1 December 2017
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q. Can the allegations that are put in the investigations vary from those that are put in the disciplinary process or do they need to be the same?

Well, I think that again the two types of scenarios there. It would be rare that when I draft disciplinary allegations would they ever be the same as a disciplinary investigation.

Yes, the two are different. Because often through the investigation, you'll give at the start very vague allegations what they are, you'll do the investigation, and then you'll give the detail. And certainly at the disciplinary level, at that point, the employer should be very clear about what the allegations are and not be just a vague of, "You're accused of theft." You'll need to give what they're accused of theft of, when the theft was, how much, and all those details, and case law is clear about that, that the employee has to be very clear about what the allegation is that they're answering.

But saying that, I don't think that the overlap from the investigation to the disciplinary, when the employee gets a disciplinary letter, they shouldn't be surprised all of a sudden by a brand new allegation against them that they haven't heard of before.

If we look at the LRA Code of Practice, it tells us that the investigation process should be used to conduct a full investigation of the allegations. And it's fine if allegations arise during that process. There might be new allegations or fresh or they might be an extension of what's there, just make sure that they're investigated with the employee first of all before you move into your disciplinary process.

This article is correct at 01/12/2017

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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