28 08 2018 Insights Employment Law

Recognising the value of an external workplace Investigator

1535623155337 Walking Business People

By Deirdre Malone
30 August, 2018

The High Court has provided recent guidance to employers on the pitfalls of failing to recognise bias (or the perception of bias) in a workplace investigation and disciplinary process.

The Court Chronology
The recent decision of Towerbrook Limited t/a Castle Durrow Country House Hotel (“Castle Durrow”) –v- Ernest Young (“the employee”) 2018 IEHC 425 offers guidance to all employers on who can conduct an investigation in the workplace. The case involves an appeal from the EAT (as it was) to the Circuit Court and a further appeal to the High Court. It reaffirms the long-established law that one cannot be a judge regarding an allegation against oneself (nemo iudex sua causa).

The background to this case involves the EAT finding that the employee was unfairly dismissed from his employment with Castle Durrow, awarding him €32,000 in respect of the dismissal. Castle Durrow appealed to the Circuit Court and the Judge upheld the findings of the EAT agreeing that the dismissal was unfair. Ultimately, on appeal to the High Court, it too upheld the original decision of the EAT.

When the Boss should not investigate
The background to the case is instructive to employers in receipt of complaints against the most senior members of management.

Mr Stokes is a Director and Managing Director of the company that owns Castle Durrow. The employee was a general handyman employed on foot of a written contract of employment (with extensive policies in place) from February 2000. He was dismissed in August 2013. It took five years before the case reached the High Court. Barton J delivered his decision on 16th July 2018.

On the Monday of the June bank holiday weekend in 2013, the employee was directed not to take refuse away from the hotel before 11 am in the morning as it would wake hotel guests. Unfortunately on the particular day in question, he had no choice but to remove the refuse before the 11 am direction as he had also been directed to deliver food to a local café (also owned by Mr Stokes). Although strongly contested, it appears that Mr Stokes was extremely angry when he found the employee removing the refuse before 11 am from the hotel. There was a physical altercation and, based on medical evidence from the employee’s GP, it was submitted that Mr Stokes punched the employee in the chest.

The employee spoke with Mr Stokes about an hour later and demanded an apology for being punched in the chest. Mr Stokes sent the employee home and told him to cool down a return the next day to discuss.When the employee returned, Mr Stokes was not there and a further interaction occurred with the employer’s Chief Financial Officer (“CFO”).

The employee filed a complaint with Castle Durrow that he was assaulted. Mr Stokes served a letter suspending the employee on full pay pending an investigation.

The employee took the view that it was entirely inappropriate for Mr Stokes to investigate and determine what disciplinary sanction, if any, should be applied in respect of Mr Stokes’ complaint of assault against him. Mr Stokes felt it prudent that he himself would investigate both the incident involving the CFO and the incident involving himself. It appears that without any investigation whatsoever, the employee was invited to attend a disciplinary hearing at which both the CFO and Mr Stokes would be present to conduct the meeting. It is utterly bizarre that the two people complaining about the employee would then proceed to conduct the disciplinary hearing against him. Both sides were legally represented and correspondence exchanged regarding the “process”. Mr Stokes ultimately held the disciplinary hearing in the employee’s absence and terminated his employment.

Fair Procedures?
In coming to its decision, the Court reviewed all of the comprehensive policies in place in Castle Durrow and held that it failed entirely to provide an independent, thorough, impartial or objective investigation as promised in its own policies.

It is, as the Judge held, “hardly surprising” that the employee objected to Mr Stokes conducting the investigation and disciplinary process when the employee considered himself to be subject to verbal and physical abuse by Mr Stokes. The employee had helpfully suggested through his Solicitors that an independent third party would be appointed to try to resolve matters. Mr Stokes refused to do so unless the employee made a financial contribution towards the cost of appointing such a person. By the time this suggestion was made, the employee had transitioned to suspension without pay and so had strained financial circumstances.

The Judge held the entire process resulting in the employee’s dismissal was fundamentally flawed and contrary to the principles of natural justice. Mr Stokes was neither independent, impartial nor objective and so Castle Durrow’s appeal was dismissed.

Key learnings

  1. It is pointless to have comprehensive policies in place and then fail to have any regard to the process outlined in those policies in the event of a disciplinary matter arising.
  2. Policies should be checked to ensure that there is an appropriate system in place to address situations where a complaint is made by an employee against senior members of management and/or the most senior person within the business.
  3. It is entirely inappropriate to suspend an employee without pay pending an investigation and, at the same time, refuse a reasonable suggestion that an employer should appoint an independent third party to investigate, unless the employee makes a contribution toward the cost of same. This is clearly something beyond the means of an employee who is not in receipt of pay in respect of their employment.

This case highlights the importance of having an objective person who has not previously been involved in the alleged incident investigate a complaint. Following on from that, there should be a further objective person engaged to conduct the disciplinary action (if required).

In this case the person who made the complaint, Mr Stokes, then proceeded to conduct the investigation into his own allegation. Notwithstanding that the employee had suggested the involvement of an independent third party in circumstances where there was nobody higher than Mr Stokes in the company, Mr Stokes refused. He then purported to conduct a “fair” disciplinary hearing following the investigation into the incident involving himself.

Reflecting on the facts outlined above, there is no possibility of natural justice or fair procedures being implemented to the employee in this case. This was an extremely costly exercise for Castle Durrow as there were a number of junctures at which this matter could have been resolved more easily. Employers can learn from this event and actively consider, where appropriate, engaging external parties to assist in the process to ensure fair procedures are implemented.

For more information on the content of this Insight contact:
Deirdre Malone, Partner, deirdre.malone@rdj.ie, + 353 21 4802746

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