Fatal Flaws in Workplace Investigations

Last week, former Scottish First Minister Alex Salmond was awarded ￡512,250 costs after a fatal flaw was judged to exist in his workplace investigation. It provides a timely reminder to employers and H.R. departments that while it is vital to have correct procedures in place, it's just as important to follow those procedures.

By way of brief context, Mr Salmond faced allegations of sexual harassment, and an investigator was appointed to investigate. Mr Salmond then sought Judicial Review of the investigation and the key to his success in so doing hinged on the appointment of the investigator.

Crucially, the Scottish government's procedural rules require that in a workplace investigation, the appointed investigator must have no prior involvement with the complainant or respondent. It transpired that the appointed investigator had a level of involvement with the two complainants prior to the investigation.

The prior involvement was sufficient to render the investigation process "unlawful", with Edinburgh's Court of Sessions judicially reviewing the entire process as "tainted with apparent bias."

The result is a bill for the taxpayer and a reminder for employers and H.R. departments to follow procedures.

Don't be Judge and Executioner

In a similar vein, the Irish system has provided several recent examples of how not to conduct a workplace investigation. For example, last year's case of Towerbrook Limited t/a Castle Durrow Country House Hotel v Ernest Young 2018 IEHC 425 provides a clear reminder that bosses and managers should avoid conducting their own investigations. The judgment can be read here.

In this case, Mr Peter Stokes, a managing director of the company behind Durrow Castle, investigated two incidents, although the complaint in question centred around an allegation in which he was involved.

Mr Stokes appointed himself as an investigator to an incident he was directly involved in. By doing so, he removed any possibility that he, and therefore the investigation, could be seen as independent, impartial or objective.

Durrow Castle had a very comprehensive suite of policies and documentation. However, the Judge held the entire process resulting in the employee's dismissal was fundamentally flawed and contrary to the principles of natural justice. When one considers that Mr Stokes had sought to investigate his own allegation against an employee, it is not that surprising a result.

What is surprising is how often such cases arise

ADJ-00013201 An Employee v A Bus Company from December of last year is a more recent example. Here the WRC Adjudication Officer (A.O.) found that the Services Manager in the case conducted both the investigation and disciplinary stages in allegation of theft against an employee. In his decision, the A.O. referred to case law clearly showing that fair procedures involve a separate investigation and disciplinary decision-making stages, and never the twain shall meet.

Specifically, the A.O. highlighted the Labour Court decision in Joseph Brennan Bakeries v Rogers (UDD1821) which emphasized the importance of a "clear separation of investigation and disciplinary processes". It is interesting to note that the A.O. effectively saw this dilution of roles as being a fatal shortcoming of the process. The failure to provide the investigation report to the employee and detailing the charges against the same compounded an already fatally flawed process.

The lesson from such cases is not novel law. The 2014 case of Abdullah v Tesco Ireland plc UD1034/2014, stated that a reasonable employer must show the court that they conducted a "fair investigation" and that the employee's treatment and sanctions were "not disproportionate". 

However, clear guidance on this area dates back even further to 2000. The Code of Practice on Grievance and Disciplinary Procedures S.I. 146 of 2000 provides a touchstone for guidance in this regard. This code sets out best practice on the conduct of grievance and disciplinary procedures. In so doing, it very clearly emphasizes the importance of fairness and natural justice in investigation processes. 

Two weeks ago, Adjudication Officer Ewa Sobanska in the WRC decision of ADJ-00017844 A Warehouse Operative v A Company helpfully outlined what good procedural practice entails. In the case in question, Ms Sobanska found that the Respondent had failed to adhere to any of the procedures provided for in the Code of Practice and consequently the dismissal was wholly flawed.

The A.O. outlined the following as the components of good discipline and grievance procedures as found in the 2000 Code of Practice:

• Employee grievances are fairly examined and processed
• Details of any allegations or complaints are put to the employee concerned
• The Employee concerned is allowed to respond fully to any such claims of complaints
• The Employee concerned is given the opportunity to avail of the right to be represented during the procedure
• The Employee concerned has the right to a fair and impartial determination of the issues, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

Conclusion for Employers and Employees

The main take away from such brief examples is that natural justice and fairness require that an employer acts reasonably and follow procedures that ensure fairness and natural justice. One way of doing this is to follow policies and procedures. Another way, is to follow well established statutory guidance on the issue. Those employers who fail to learn from the mistakes of the past run the risk of repeating them in the future.

Author: Rob Michael

Contact: [email protected]