Must we await the conclusion of an investigation before interviewing for an internal vacancy?

Posted in : Seamus Says - Employment Law Discussion on 11 January 2019
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q: An employee is being investigated but has applied for a different internal vacancy. She claims it is unfair to expect her to attend the interview until the investigation is over. What advice can you give?

Seamus: Well, the important point in terms of this query is that we don't know what the investigation is in relation to. So, we don't know if it's a disciplinary investigation or it can well be a grievance investigation. You can possibly understand that if an employee has put in a grievance that they may be hesitant to proceed with an interview process for another vacancy while that's ongoing because they may feel that they want that resolved.

In addition to that as well, if you have someone that is facing possible disciplinary procedures, they may feel that they want that addressed in terms of they don't want a dark cloud over them going into any kind of interview or any role. So, it's understandable, but at the same time, the real crux of the matter for me here is if I was sitting in the HR advisor seat, I would be saying that we have a vacancy here in our organisation.

It's an important role with responsibilities that need to be conducted and carried out within the organisation and it's of vital importance that that role is filled and it's filled as quickly as possible because we're looking at the business need here. My opinion and my view on it would be that you would be proceeding to complete the vacancy process and whether that's through the internal trawl or what it is, but for me, that's the most important aspect here.

I can understand there might be exceptional circumstances where perhaps you do need to complete the investigation first of all, but really, you're looking after your business here. If the business isn't there, there aren't any jobs and there are potential redundancies if the work isn't done. You can imagine if this was a role, for instance, that was dealing with invoicing and things like that, there could be a very important role. My view would be that you could surely deal with the two processes in tandem and you could hold the investigation separate to any interview for the role.

Scott: There are certain sensitivities there, but you can't let the tail wag the dog.

Seamus: No.

Scott: You've got a business to run. You go ahead and you do that. Sometimes you find that people will say you can't go ahead with any of that recruitment until this process is finished. The answer to that is generally get lost.

Seamus: Yeah.

Scott: It's our business. We will run it. But there are sensitivities there. You could have somebody presumably argue, whether they win it or not, but they could presumably argue there's some kind of penalisation or victimisation. If it's an equality angle that's in this investigation . . .

Seamus: The risk would be that if the person goes through the interview process, doesn't get the job, and then makes an allegation whenever they didn't get the job to say, "Well, this is because this investigation was ongoing and my name hasn't been cleared," or, "I'm now viewed as a troublemaker," or something like that. So, you could understand that there is a bit of risk with it dependent on the circumstances, but ultimately, the necessities and the needs of the business are paramount, really, here, I would have thought.


This article is correct at 11/01/2019

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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