Investigation meeting

LegacyUser

Currently on suspension from work for alleged gross misconduct.
I have been invited to an investigation meeting this week. Am I entitled to know what evidence may be produced at this meeting? So far I have just been given a summary of a complaint against me, but no actual witness statements, evidence etc.

Thanks

Eoin

Does your company have a disciplinary procedures handbook that you can refer to? There are certain principles that must be followed, but the specific steps are not defined by law.

Here's a code of practice that can be useful to refer to, but unfortunately it doesn't mention that any evidence should be made available in advance of the meeting. It doesn't specifically say that you must be given the information in advance.

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

? That employee grievances are fairly examined and processed;

? That details of any allegations or complaints are put to the employee concerned;

? That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

? That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

? That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

LegacyUser

Thanks Eoin

Staff handbook is fairly vague on what the process is re: investigation meeting other than to say that it may suspend an employee in order to facilitate an investigation.

What is the difference between an investigation meeting and a disciplinary meeting?

Is it at the investigation meeting that you would have the opportunity to cross examine any witnesses? In which case, I think you would need to be provided with a summary of the evidence or witness statements that the company intend to produce at the investigation meeting, otherwise how would you prepare for it?

Bepolite

If it's the disciplinary meeting itself the evidence must be made available prior to the meeting. This is a basic standard that goes without saying, or should but many HR people aren't legally trained so don't understand where this stems from.

That said if it is merely an investigation then it's very similar to an interview with the guards, a good HR person will try and catch you out, it's simply part of the game and they are entitled to do this. An investigation is exactly that and you have no right to cross examine witnesses. You may be allowed to bring a witness, but that isn't a requirement AFAIK.

The difference between the two is essentially the same as a garda interview and your day in court.

EDIT: I should also say at this stage get proper legal advice. If you ring around solicitors one might advise you for a nominal fee. If that is out of the question financially then try FLAC.

LegacyUser

Yeh I'm not 100% sure.

It states "investigation meeting" however this is their third attempt at trying to do this.

The first time I was invited to a "disciplinary meeting" with one set of allegations to be attended by HR/Manager
The second time it was a "formal investigation meeting" with some additional allegations to be attended by HR and a different manager.
Now it's an "investigation meeting" but with less allegations with a different HR person and a different manager.

A bit confusing to know what stage I am really at and as I have said the handbook isn't super clear and they seem to be backtracking having presumably copped that they've made a balls of the process.

If this is only an investigation meeting, can I request a summary of whatever evidence they intend to produce at the investigation meeting so that I can at least prepare for it?
All I have so far is a statement from a manager saying that X said the following about you, with no evidence to back up their statement - just their opinion.

If it is an investigation, will there need to a separate disciplinary meeting where I can cross examine the witness?

Will they need to back up their statements with actual evidence. Would hearsay/conjecture be enough for a dismissal?

Eoin

Will they need to back up their statements with actual evidence. Would hearsay/conjecture be enough for a dismissal?

Nobody here can advise you on that.

Unless you can find a source that says otherwise, then it does not appear that you have any entitlement to any evidence before the meeting, based on the link I posted earlier - I could be wrong, but haven't seen any links that suggest otherwise. There are no specific steps for these things set out in law; only guidelines that may or may not be adopted by a company, and principles that must be adhered to.

I would recommend that you exercise your right to have a witness present at the least. Proper legal advice might also be a good idea at this stage.

Bepolite

At the investigation stage you've no right to the evidence, that's not to say you can't request it and if it were me I would request it in writing, keeping a copy for yourself.

At the disciplinary stage you have a right to any evidence they might use, and a right to cross examine any witness they seek to rely on. This is a basic right under the 'natural justice' principle. That said I know a number of employers, especially UK based ones, who just assume the law is similar to the UK and won't allow witnesses to be cross examined.

There is very little point in going all gung ho (I'm not suggesting this is what you are going to do). If they refuse to allow you to cross examine, or fail to provide you with the evidence ask for the meeting to be adjourned until this can be facilitated. If thats refused make sure it's in the notes, get it signed by both parties and keep a copy. Get proper advice on whether to proceed or not.

I highly recommend talking to an employment law solicitor. They will guide you through the process and help you come off as professional and if the worst comes to the worst will hit the ground running if it needs to go to EAT.

Bepolite

anonymous 123 wrote: »

If it is an investigation, will there need to a separate disciplinary meeting where I can cross examine the witness?

Will they need to back up their statements with actual evidence. Would hearsay/conjecture be enough for a dismissal?

On point 1 yes there should, again if this isn't the case, explain politely that you were told this was an investigation and that you will require all the evidence and time to review it before proceeding. If they refuse get proper legal advice. I can't advise you further, I'd have a solicitor expecting a call. It has to be someone qualified as you may have to make a call here on whether you stay or walk out.

On point 2 What they should do, and what they might do are two different things. Take proper advice, keep calm and if the worst happens there are many options especially if you've taken proper advice at an early stage.

LegacyUser

Thanks Eoin & Bepolite for your responses.

I have had legal advice throughout the process but I don't want to ask my solicitor too many unnecessary questions and incur fees unless I really have to.

But anyway, if we assume that this is just an "investigation meeting", then no I'm not entitled to any evidence in advance or to cross examine witnesses.
(they have called it a few different things and initially it was referred to as a "disciplinary meeting" hence the confusion)

But at a disciplinary meeting I can challenge any other evidence (according to solicitor) and if my job is on the line in the final disciplinary meeting I can be represented by a solicitor.

So I do hope this is just an investigation meeting and I'll save my energy for the disciplinary meeting and try to remain calm.

Eoin

I don't think you're entitled to a solicitor being present - from the link I posted earlier:

"For the purposes of this Code of Practice, "employee representative" includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise."

Best of luck though.

Bepolite

anonymous 123 wrote: »

Thanks Eoin & Bepolite for your responses.

I have had legal advice throughout the process but I don't want to ask my solicitor too many unnecessary questions and incur fees unless I really have to.

But anyway, if we assume that this is just an "investigation meeting", then no I'm not entitled to any evidence in advance or to cross examine witnesses.
(they have called it a few different things and initially it was referred to as a "disciplinary meeting" hence the confusion)

But at a disciplinary meeting I can challenge any other evidence (according to solicitor) and if my job is on the line in the final disciplinary meeting I can be represented by a solicitor.

So I do hope this is just an investigation meeting and I'll save my energy for the disciplinary meeting and try to remain calm.

It's one thing to ask unnecessary questions it's another to rely on advice here when you have legal counsel. Do not under estimate how useful proper legal advice is in this area. It can mean the difference between sacking and a settlement with a good reference.

Due to a quirk of Irish law actual decisions are very difficult to challenge. There only need be some supporting evidence, no matter how small, even in the face of evidence the other way for a decision to be upheld. The procedure on the other hand in very easy to challenge and full of grey areas.

One such grey area is the ability to have your solicitor present during the meeting. On the one hand there is precedent to support it, but only in certain professions and only in certain cases. I defer to your solicitor of course, however if you're not paying for the basic questions I'm not sure you'll want to pay for half a day of a solicitor there taking notes. A good employment solicitor will have someone in the office for you to call on should you need it during the meeting. Ask for an adjournment if you need it and call the office. If everyone is out, ask for the meeting to be adjourned until you can consult.

Obviously don't obstructive with all of this. You seem to be assuming the worst, it may just be a simple warning in the end.

Eoin

Bepolite wrote:

It's one thing to ask unnecessary questions it's another to rely on advice here when you have legal counsel

^ very good advice at this stage

Bepolite wrote: »

Due to a quirk of Irish law actual decisions are very difficult to challenge. There only need be some supporting evidence, no matter how small, even in the face of evidence the other way for a decision to be upheld. The procedure on the other hand in very easy to challenge and full of grey areas.

I sort of agree - the labour court is full of judgements where an employee was blatantly taking the piss, but because the employer may have missed one of the steps, the employee wins their case.

But the employee is automatically assumed to have been unfairly dismissed, until the company can prove otherwise. So it's not just a case of confirming that the steps were followed; from there, they have to prove that the actions themselves were a firing offence.

Bepolite

Eoin wrote: »

But the employee is automatically assumed to have been unfairly dismissed, until the company can prove otherwise. So it's not just a case of confirming that the steps were followed; from there, they have to prove that the actions themselves were a firing offence.

This is an excellent reason why you shouldn't rely on the internet for advice of this nature - not that I'm having a go at you for asking OP, just check it out. I've no reason to doubt the above poster and he clearly points out where I'm incorrect in the employment sphere. Luckily that one was caught you might not be as lucky with other points.

LegacyUser

I did consult my solicitor. he confirmed what I stated. He also confirmed that at a disciplinary meeting, you can be represented by a solicitor when your job is on the line. This is according to case law.

Anyway need to get through the investigation meeting first and see what they decide to do.
There are 2 issues - procedure and they have definitely made a mess of that. Then the actual allegations which are basically a person's subjective view the nature of which could not be backed up with fact. So find it very difficult to see how they came to the conclusion that this is gross misconduct.

I don't believe I have done anything wrong and therefore have an issue having to spend a lot of money on legal fees to protect my job. But as you say, it seems employers can do whatever they like, and you only really have recourse if they do go for a dismissal.

Bepolite

anonymous 123 wrote: »

I did consult my solicitor. he confirmed what I stated. He also confirmed that at a disciplinary meeting, you can be represented by a solicitor when your job is on the line. This is according to case law.

As I say I defer to your solicitor, however the only cases I'm aware of where in relation to prison officers where it was held that they may be allowed to be represented by counsel given the serious nature of the accusations. The judgment, in my interpretation, seem to indicate that something other than an employment type scenario was required and an addition sanction might result.

The protection of one livelihood is a constitutionally protected right as is the right to natural justice. Irish courts are pretty good at distinguishing different scenarios though. I would suspect that if you work in a shop, say, being sacked would not rise to this standard as you can work in another shop. In the alternative, if you have to have a license to race greyhounds and that was removed, you'd have a case. I reiterate that I defer to your solicitor, I'm just chewing the fat here.

anonymous 123 wrote: »

Anyway need to get through the investigation meeting first and see what they decide to do.
There are 2 issues - procedure and they have definitely made a mess of that. Then the actual allegations which are basically a person's subjective view the nature of which could not be backed up with fact. So find it very difficult to see how they came to the conclusion that this is gross misconduct.

This statement is very confusing; they've either started the procedure or they haven't. If they haven't they haven't made a mess of anything yet. If it's someone subjective opinion that, say, someone can't sell, the company can hold an investigation and got through any evidence. This may or may not lead to a disciplinary and you may not be present for all the investigations.

anonymous 123 wrote: »

I don't believe I have done anything wrong and therefore have an issue having to spend a lot of money on legal fees to protect my job. But as you say, it seems employers can do whatever they like, and you only really have recourse if they do go for a dismissal.

Once you have this information you have it for life. Getting proper answers is an investment for the future. I tend to find that if an employer is engaged in spurious activities surrounding disciplinaries, you're better off out anyway. Having a solicitor present for a meeting is going to be way more expensive than covering off a few questions.

Gertrude2

I have some experience in conducting this type of investigation. I do not interview the accused person until I have spoken to accuser and witnesses and gotten whatever evidence is going to be used. I always give this material in writing to the accused party before the investigation interview - otherwise they cannot properly address the information / evidence which is the basis of the case.

Personally, in the OP's situation, I would be formally and in writing requesting all details of the accusation, including witness statements before the investigation meeting.

If this material is given for the first time at the meeting, OP should say that he/she needs time to get a response together.

I have found that solicitors are a nuisance at this type of meeting as many of them don't have much of a clue about workplace stuff and try to act as though they are in a courtroom. It might be more useful to bring a union rep or an experienced colleague.

OP should definitely bring someone, if only to take notes.

Bepolite

Gertrude2 wrote: »

I have some experience in conducting this type of investigation. I do not interview the accused person until I have spoken to accuser and witnesses and gotten whatever evidence is going to be used. I always give this material in writing to the accused party before the investigation interview - otherwise they cannot properly address the information / evidence which is the basis of the case.

If you're proceeding straight to a disciplinary without conducting a meeting with the employee you're procedure isn't ideal. Furthermore of you are conducting both the investigation and the disciplinary you're procedure is flawed. If possible the investigation and decision should be conducted by separate and independent parties.

Gertrude2

I only do investigations, not disciplinary. The same person can't do both.

Bepolite

Gertrude2 wrote: »

I only do investigations, not disciplinary. The same person can't do both.

They can if the situation dictates, for example in a business with only two employees.

While your way is one way to do it, there is something to be said for getting the other-side of the story without it being coloured by something anyone else has said. The OP can certainly request the evidence and you are absolutely right that he should respond that he needs to look in to things where he needs to, but he's no right to it at the investigation stage. To be fair you've not suggested that he does have a right I just wanted to clarify.