Workplace Investigations: Employee Rights

Investigations in the workplace seem to be either run well by employers or fail abjectly to give an employee a fair hearing.

Fairness is the key word when employers carry out investigations.   

What can be common is that investigators responsible for investigations in the workplace have not been trained to run investigations properly.

A workplace investigation process is evidently not a court setting, but it is nevertheless correct to say that it is of the utmost importance to seek to establish the truth of factual events in an investigation process.

This does not mean making a half-hearted attempt at this. Genuine efforts and work should be done to find the truth in these matters.

Not interviewing all witnesses or relying on a letter from an initial complainant without interviewing the complainant, are examples of indicators of lacklustre investigations, which will only strengthen an employee’s claim that the investigation was inappropriate or even worse that the outcome was pre-determined.

If an employee is called to an investigation meeting, he/she should not receive a telephone call to be told to attend at the bosses office and then ambushed with notification that an investigation is to take place immediately and then present the allegations to the employee.

Employees are Entitled to Notification

Every employee is entitled to have notification, preferably written, with detail of the nature of the upcoming investigation meeting etc. so the employee has time to think about the complaint, time to prepare his/her answers, and time to obtain representation to attend the meeting with him/her.

There should be no bias in an investigation process. There must be impartiality to it.

Biased investigators with skin in the game have a tendency to want to take charge of workplace investigations.

This decision may impair the entire investigation process and open the employer up to liability exposure in an unfair dismissal claim.

Employees have the Right to Representation at an Investigation

An employee should be afforded with right to have representation at an investigation meeting where allegations are made against the employee.

An employee should be asked what witnesses they may have which can assist their case regarding the allegations.

The employees nominated witnesses should thereafter be interviewed by the investigator.

An employee should be presented with the evidence of witnesses.

An employee should be allowed to ask questions regarding witness evidence.

An employer may have genuine concerns about the conduct of an employee and there may be justification for the dismissal, but if they then apply procedural deficiencies in the investigation, an adjudication officer will likely conclude the flawed procedure resulted in an unfair dismissal and compensation, re-engagement or re-instatement will likely be ordered.

All employees are entitled to fair procedures which necessitates that full and thorough investigations take place in order to ensure that all relevant facts are established and then investigated.

Whenever an employer is carrying out an investigation, at the forefront of their minds, should be ‘’what is the truth before I decide the remedy’’.  

This focus on finding the truth is often not done, lacklustre and poor investigations are carried out, and employers consequently expose themselves to a charge that flawed procedures were applied and as a result an unfair dismissal arose.

Disclaimer

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed.

It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.

Legal advice should be sought from a solicitor prior to relying on anything in this article.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.