Workplace Investigations: Five Mistakes That Can Lead to WRC Claims

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Workplace complaints can arise in any organisation. An employee may raise concerns about a colleague, challenge how they have been treated by a manager, or make allegations involving bullying, harassment, misconduct or other workplace issues.

In many cases, the employer needs to establish the facts before deciding what action, if any, should follow.

This is where workplace investigations can become challenging.

If an investigation is rushed, poorly documented or appears biased, the investigation itself can become part of the dispute. What began as an internal workplace complaint can ultimately contribute to a complaint being made to the Workplace Relations Commission (WRC).

Irish employers need to ensure that investigations are handled fairly, objectively and in accordance with appropriate procedures. The WRC’s Code of Practice on Grievance and Disciplinary Procedures emphasises fair procedures, including putting allegations to the employee, giving them an opportunity to respond, allowing appropriate representation and ensuring a fair and impartial determination.

In this guide, we look at five common workplace investigation mistakes, why they can create risk for Irish employers and the practical steps businesses can take to manage investigations more effectively.

Why Do Fair Workplace Investigations Matter?

When an employer receives a serious complaint or becomes aware of possible misconduct, there can be pressure to act quickly.

However, an investigation is generally about establishing the facts. It should not be used to confirm a conclusion that has already been reached.

A well-managed investigation will generally involve:

Clearly identifying the allegations or issues being investigated.
Defining the scope of the investigation.
Appointing an appropriate and impartial investigator.
Gathering relevant documents and other evidence.
Speaking to relevant witnesses where appropriate.
Giving the employee an opportunity to respond.
Considering the evidence objectively.
Keeping appropriate records.
Reaching findings based on the evidence available.

The precise process will depend on the nature and seriousness of the issue.

Where an investigation may lead to disciplinary action or dismissal, however, fair procedures become particularly important. Employers should be able to demonstrate how they investigated the matter, what evidence they considered and how they reached their findings.

The WRC Code of Practice states that grievance and disciplinary procedures should be rational and fair and that employees should have an opportunity to respond to allegations and have their issues determined fairly and impartially.

Mistake 1: Starting an Investigation Without Clear Terms of Reference

One of the first mistakes employers can make is beginning an investigation without clearly defining what is actually being investigated.

This becomes particularly problematic where a complaint involves several allegations, multiple employees or events that have taken place over a long period.

Clear terms of reference help establish:

The specific allegations or issues being investigated.
The scope and purpose of the investigation.
Who will conduct the investigation.
The relevant policies or procedures.
The evidence and witnesses that may need to be considered.
What the investigator is expected to report.

Without a clear scope, an investigation can gradually expand into unrelated issues. Employees may also be asked to respond to allegations that were never properly explained to them.

If new and potentially significant allegations emerge during the investigation, the employer should consider whether the terms of reference need to be updated and whether the employee needs to be given an opportunity to respond to the new issues.

The aim is to make sure everyone understands what is being investigated and why.

Mistake 2: Choosing an Investigator Who Is Not Impartial

The person conducting an investigation can have a significant impact on whether the process is perceived as fair.

Problems can arise where the investigator:

Was directly involved in the original complaint.
Has a close relationship with one of the people involved.
Has previously expressed an opinion about the allegations.
Has a personal or professional conflict of interest.
Does not have the experience required to handle the investigation.

Even where an investigator believes they can remain objective, a significant perceived conflict can undermine confidence in the process.

Before appointing an investigator, employers should consider whether the person has:

Appropriate experience.
Sufficient independence.
No relevant conflict of interest.
The ability to assess evidence objectively.
The time and resources to conduct the investigation properly.

An internal manager or HR professional may be perfectly appropriate for many workplace investigations.

However, where allegations involve senior management, HR personnel or particularly sensitive matters, an independent external investigator may be more appropriate.

The objective is not to outsource every investigation. It is to choose an investigator whose involvement gives the process the best chance of being fair, credible and effective.

Mistake 3: Failing to Give the Employee a Fair Opportunity to Respond

An employee cannot properly respond to allegations if they do not understand what they are being accused of.

Employers can run into difficulties where allegations are vague, relevant information is not provided, or conclusions are reached before the employee has had a meaningful opportunity to give their account.

Depending on the circumstances, employers should ensure that the employee:

Understands the allegations or issues being investigated.
Is given sufficient information to understand the case they need to answer.
Has reasonable time to prepare.
Has an opportunity to respond to relevant evidence.
Can provide relevant information or evidence of their own.
Has the opportunity to avail of appropriate representation in accordance with the applicable procedure.

The WRC Code of Practice specifically identifies the employee’s opportunity to respond to allegations and to avail of representation as elements of fair procedures.

Fair procedures do not necessarily look identical in every investigation.

The appropriate approach will depend on the seriousness and circumstances of the case. However, the fundamental principle remains the same: an employer should not make findings without giving the employee a genuine opportunity to respond to the matters being considered.

Mistake 4: Keeping Poor Investigation Records

Even an otherwise well-managed investigation can become difficult to defend if there is no clear record of what happened.

Months later, managers may struggle to remember conversations accurately. Witnesses may have left the organisation. Emails may be difficult to locate and different accounts of events may emerge.

Employers should maintain appropriate records throughout the investigation, including:

The original complaint or allegations.
The terms of reference.
Meeting and interview notes.
Relevant emails, documents and other evidence.
Witness accounts where appropriate.
Information provided by the employee.
Important decisions made during the investigation.
The investigation findings and report.
Any subsequent disciplinary or appeal documentation.

The WRC Code of Practice also highlights the importance of adequate records in the operation of grievance and disciplinary procedures.

Good documentation creates a clear timeline and allows the employer to demonstrate how it reached its findings.

It is also important to remember that records should be handled appropriately and in accordance with applicable data protection requirements. Employers should not simply retain every document indefinitely.

The objective is to maintain a clear and proportionate record of the investigation and decision-making process.

Mistake 5: Treating the Investigation Outcome as a Foregone Conclusion

Perhaps the most serious mistake is treating an investigation as a process designed to prove that an employee is at fault.

An investigation should establish the facts and assess the available evidence. It should not begin with a predetermined outcome.

This can happen when:

Managers discuss disciplinary action before the investigation is complete.
Evidence supporting the employee’s account is dismissed without proper consideration.
Allegations are treated as established facts.
The investigator only looks for evidence supporting the original complaint.
The investigator effectively decides the disciplinary sanction.

Investigators should:

Consider relevant evidence from all sides.
Keep an open mind.
Avoid reaching conclusions before the evidence has been assessed.
Distinguish allegations from established facts.
Base findings on the evidence available.
Clearly document the reasoning behind their findings.

Where an investigation leads to a disciplinary process, the investigation findings should also be kept distinct from the decision on what disciplinary action, if any, is appropriate.

The seriousness of an allegation does not mean that the outcome should be predetermined.

A fair investigation gives the employer a much stronger basis for deciding what should happen next.

What Does a Fair Workplace Investigation Process Look Like?

There is no single investigation template that will be suitable for every workplace issue.

However, employers should have a clear framework that can be adapted to the circumstances of each case.

A well-managed investigation will generally involve:

1. Define the issue

Clearly identify the complaint, allegations or workplace issue that needs to be investigated.

2. Set the scope

Prepare appropriate terms of reference so everyone understands what is and is not being investigated.

3. Appoint the investigator

Choose someone with the appropriate experience and independence.

4. Gather evidence

Collect relevant documents, correspondence and other evidence and identify appropriate witnesses.

5. Give the employee an opportunity to respond

Ensure the employee understands the allegations and has a fair opportunity to provide their account and relevant evidence.

6. Assess the evidence

Consider the evidence objectively rather than looking only for information that confirms the original allegation.

7. Record the findings

Document the findings and the reasoning behind them.

8. Decide what happens next

Where appropriate, the findings can then inform a separate disciplinary or other employment process.

Having a consistent framework helps managers avoid making decisions under pressure and provides a structured approach from the initial complaint through to the investigation outcome.

When Should You Consider an External Workplace Investigator?

Not every workplace investigation requires an external investigator.

In many cases, an appropriately experienced manager or HR professional can conduct the investigation internally, provided they are sufficiently independent and have no conflict of interest.

External support may be particularly useful where:

Allegations involve senior management or HR.
There is a potential conflict of interest internally.
The complaint involves serious bullying, harassment or misconduct.
Relationships between the parties have significantly broken down.
The matter is particularly sensitive or complex.
The business does not have anyone with the appropriate experience.
Employees may have concerns about the independence of an internal investigation.

An external investigator can provide greater separation from the dispute and bring specialist experience to a particularly sensitive matter.

The decision should be based on the circumstances of the case rather than a blanket rule that every serious complaint requires external investigation.

What Happens After the Investigation?

An investigation does not necessarily result in disciplinary action.

The findings may establish that:

The allegations are substantiated.
Some allegations are substantiated while others are not.
The evidence is inconclusive.
The allegations are not supported by the evidence.
Further action or investigation is required.

Where the investigation identifies a potential disciplinary matter, the employer should follow its applicable disciplinary procedure.

This is an important distinction.

The investigation establishes the facts; the subsequent process determines what action, if any, should follow.

Keeping these stages appropriately separate can help protect the fairness and integrity of the overall process.

How HR Team Can Help

Workplace investigations can be difficult to manage, particularly where allegations are serious, relationships have broken down or managers are unsure about the appropriate process.

HR Team can support employers across Ireland with:

Reviewing workplace complaints and advising on appropriate next steps.
Developing clear investigation terms of reference.
Supporting managers conducting internal investigations.
Providing independent workplace investigations where appropriate.
Reviewing investigation, grievance and disciplinary procedures.
Supporting managers throughout difficult employee relations matters.
Strengthening HR policies and documentation.
Helping businesses reduce the risk of procedural mistakes and workplace disputes.

Getting advice early can prevent a difficult workplace issue from becoming more complicated.

A clear, fair investigation process helps protect everyone involved while giving your business a stronger basis for any decisions that follow.

Contact HR Team today for practical support with workplace investigations and employee relations.

Frequently Asked Questions

When does an employer need to carry out a workplace investigation?

An investigation may be appropriate when an employer receives a complaint or becomes aware of allegations involving misconduct, bullying, harassment or another workplace issue where the facts need to be established.

The appropriate process will depend on the nature and seriousness of the issue.

Does an employee have the right to respond to allegations during an investigation?

Employees should understand the allegations being investigated and have a fair opportunity to respond before findings are reached.

Depending on the circumstances, this may include being provided with relevant information, giving their own account and providing relevant evidence.

The WRC Code of Practice identifies the opportunity to respond to allegations as one of the principles of fair procedures.

Can a manager conduct a workplace investigation?

Yes. An investigation can often be conducted internally by an appropriately experienced manager or HR professional.

The investigator should be sufficiently impartial, have no relevant conflict of interest and have the skills necessary to conduct the investigation properly.

Does an employee have the right to representation during a workplace investigation?

This depends on the circumstances, the applicable workplace procedure and the stage of the process.

The WRC Code of Practice identifies the opportunity for an employee to avail of representation as one of the principles of fair procedures. Employers should therefore ensure their procedures clearly explain representation rights and seek appropriate advice where the position is unclear.

How long should a workplace investigation take?

There is no single timeframe that applies to every workplace investigation.

The appropriate length will depend on factors such as the seriousness and complexity of the allegations, the number of witnesses and the amount of evidence involved.

Employers should progress investigations without unnecessary delay while allowing sufficient time for a fair and thorough process.

When should an employer use an external investigator?

External support can be useful where allegations involve senior management or HR, there is an internal conflict of interest, or the complaint is particularly serious, sensitive or complex.

An external investigator may also be appropriate where the business does not have someone with the necessary experience or independence.

Can a poorly handled investigation lead to a WRC claim?

A procedural mistake does not automatically result in a WRC claim.

However, where an investigation forms part of a disciplinary, dismissal or other employment dispute, failures in fair procedures can weaken an employer’s position.

The WRC’s Code of Practice emphasises fair and impartial procedures, an opportunity for employees to respond and appropriate record-keeping.

Following a clear process and maintaining appropriate records can help employers demonstrate how decisions were reached if a dispute is later referred to the WRC.