The Workplace Investigation and the Law. Part 2

While avoiding unnecessary scrutiny by the High Court is a prudent consideration for any of us, this is not a defensive exercise only. We should seek to go beyond that thinking and move towards developing a best practise model that would be legally watertight for the long term but moreover provide comfort to the parties involved that they were getting the exercise they had signed up for, and contribute to a resolution of the issue in hand (or at least not make it more difficult).

This model should resemble for investigators what the Chartered Institute of Arbitrators standards and rules provide for arbitrators and mediators. (These can be viewed at www.arbitration.org)

Indeed, where investigations have been the subject of scrutiny and adverse review by the courts or the tribunals some of the problems might simply be said to represent generally poor standards of professionalism in the conduct of an investigation (while of course there are many highly professional investigators doing excellent work).

For example, in the Minnock case discussed below it appears that neither the employer nor the investigator saw fit to produce proper Terms of Reference for the investigation and this became a factor in the court in intervening in the process, (or as it described it there was a ‘failure to set out what the process was going to be’).

Similar failures were criticised by Laffoy J. in Cribbin v PLC Ingredients.

While ensuring a high standard of professionalism in the management and conduct of these investigations would instil confidence in the investigation process and in CIArb accredited practitioners among those who require their services, it would also, as a consequence keep those practitioners well clear of legal hazards. This is not least because the requirements of a well conducted investigation in most respects will exceed the demand of fair procedure in any case.

In fact I would favour the production of a document along the lines of the Institute’s Arbitration or Mediation rules which clearly states for the public benefit the standards to which CIArb practitioners would be accountable.

I won’t dwell on the jurisprudence in relation to fair procedure with this audience.

These are some of the cases which have given our citizens the constitutional protections which they now enjoy; the principle well summed up in Glover as requiring ‘the machinery for taking decisions which may affect rights or impose liabilities [to] be construed as providing for fair procedure.

  • In re Haughey [1971] IR 271
  • Glover v BLN [1973] IR 388
  • State (Gleeson) v Minister of Defence
  • Cassidy v Shannon Castle Banquets
  • Gallagher v the Revenue Commissioners
  • Delaney v Central Bank [2011] IEHC 212

I might pause at Delaney not to deal with the decision in this case which extended the fair procedure standard to decisions of medical practitioners in certain circumstances but for another, cautionary reason of interest to workplace investigators and this presentation.

Judge Laffoy referred to the Investigator by name thirty-nine times in the course of her judgement, and otherwise another nine times. So further reason for ensuring that you should not set sail lightly on the seas of workplace investigations. You need to carry out your work (as the investigator did in this case and the court found no fault with him) knowing that this degree of scrutiny is a possibility.

In this paper I would like to reflect on some of the issues which have arisen regarding the applicability of fair procedure to the investigation phase of the process itself and the following cases are relevant.

 Minnock v. Irish Casing Co. Ltd. and Stewart [2007] ELR 229

O’Brien v. AON Insurance Managers (Dublin) Ltd. [2005] IEHC 3

Morgan v TCD [2003] 3 I.R. 157

Looking at the Minnock case Clarke J. said that ‘as a matter of law the authorities are beginning to settle on the appropriate test to be applied in cases of this nature’, and went on to describe the spectrum of ‘preliminary inquiries’ that may be carried out (preliminary to disciplinary proceedings in this case).

At one end he located ‘the pure investigation’ where no findings of any sort are made by the investigator (other than that a formal disciplinary process is warranted) to the other end of the spectrum where the investigator gathers the facts and makes formal findings.

Clarke J. made it is clear that the authorities say a pure investigation which does not involve any findings whatsoever is not a matter to which the rules of natural justice apply. It is not therefore a matter appropriate for the court to intervene.

On the other hand, where an investigator is permitted to make findings, the court said that it appears to be settled from the majority of the authorities that the rules of natural justice do apply and the court may well need to consider if it is appropriate to intervene where there is evidence to suggest the manner in which the investigation is being carried out is seriously flawed.

This opens the obvious question as to the definition of ‘a finding’. It would be hard to imagine an investigator’s report without findings in the ordinary sense of the word.

Fortunately, this was addressed in the earlier case of O’Brien v AON Insurance Managers (Dublin) Ltd. [2005] IEHC 3 where again Clarke J (relying on dicta in Morgan v TCD [2003]3 I.R. 157 per Kearns J) said that where the recommendations of the investigators report do not ‘amount to a sanction’ Haughey rights do not apply especially as the plaintiff would still be entitled to have all these matters considered at a later disciplinary hearing.

 He said that this was the case that even if there were ‘infirmities’ in the investigation which affected the report of the investigator because it did not amount to a sanction that would require the court to intervene. (See also UK EAT case Santamera v Express Cargo Forwarding t/a IEC Ltd (2003) IRLR 273 where it was held that an investigation will not be unfair even if individual components were.)

On this basis adherence to the principles in Judge Clarke’s summary of the law in Minnock are obviously the safest bet for an investigator.

 In the next piece I will discuss cases which stray beyond the pure investigation

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