Workplace investigations - from a legal perspectivePosted in : Seamus Says - Employment Law Discussion on 18 October 2017
Q. We've been running our own investigations into disciplinary and grievance issues including harassment and bullying. They seem increasingly fraught with problems and they take forever. We've outsourced them, but that could be very expensive. Do you have any advice on running workplace investigations from your legal perspective?
Seamus: I think it's helpful to go back to, again, if you look at the LRA Code of Practice in relation to disciplinary and grievance, it's always surprising to me that for disciplinary proceedings, we have our one, two, three procedures that everyone will be aware of. But it's interesting that that doesn't need anything to do with an investigation.
I've had many cases that have fallen at the last hurdle at a tribunal or maybe when we get to actually making an outcome where there are matters that haven't been properly investigated and the whole case can fall apart or fall down. So, the investigation is really important and we need to make sure that it's been done fairly.
A big point to make with respect to these investigations is that there's not an expectation that they are at the level of criminal proceedings or that it's what the police would do. Very much, again, you're looking at the reason it hasn't been fair to the employee. As well, I find that during investigation processes there are a lot of distractions that can be raised, either by the employee or by other offices.
I think it's just important that you remain focused on what the issues are and that you don't detract from those. It's about getting through your investigation process and, again, moving expeditiously as possible. It's about managing that process and making sure that you're not focusing on things that wouldn't be relevant to the actual disciplinary. So, it's about keeping it in there.
I suppose the only other thing that I would say about that is be careful with your investigation and don't leave yourself exposed in a position where you're at a disciplinary hearing or that you reach your outcome and you're at a tribunal and all of a sudden you realise you've relied on evidence or documentation that you haven't disclosed to the employee. Everything you deal with and any decision that you arrive at your outcome, the employee should have seen and have the opportunity to comment on that evidence.
So, you get to the disciplinary outcome stage and you're looking at your decision and you've realised there's been evidence you haven't disclosed on the investigation, two decisions to make. One, you go back and provide it to the employee and give them a fair opportunity to comment on it or second, you disregard it. The fairer one would be to let the employee have a fair crack at the whip.
Scott: Nobody's going to believe that you didn't have regard to it anyway. So, if it's CCTV, sure they see CCTV if your total receipts or witness statements, they have to see everything, but anything you're relied on, told to make a decision has to go across to the other side.
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- Coles v The Members of Fairwater Social and Athletic Club 
- Bradford v The State Hospital for Scotland 
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