CURRENT LEGAL ARTICLES

A workplace complaint — however it is initially characterised by the parties — is rarely a purely internal HR matter. Allegations of bullying, harassment, discrimination, misconduct, conflicts of interest or breaches of policy carry latent legal significance from the moment they are raised, because the manner in which an employer responds to them may later be scrutinised by the Workplace Relations Commission (“WRC”), the Labour Court, or the civil courts.

Irish employment law does not prescribe a single, universal investigative procedure. Rather, it requires that employers act in accordance with the principles of fair procedures and natural justice — most notably audi alteram partem (the right to be heard) and nemo iudex in causa sua (the rule against bias) — as these principles have been absorbed into domestic employment law through the WRC’s statutory Codes of Practice and a substantial body of case law, including the Supreme Court’s foundational statement in Re Haughey [1971] IR 217 and its subsequent application to employment contexts in cases such as Frizelle v New Ross Credit Union Ltd [1997] IEHC 137.

For the employer, the central question is not “how quickly can this be resolved?” but rather:

If this process is challenged before the WRC in twelve months’ time, can the employer demonstrate — by reference to a documented, impartial and procedurally sound process — that the investigation was fair?

This guide sets out, from a legal-practice perspective, the principal stages of a defensible workplace investigation, the statutory and jurisprudential framework that underpins them, and the points at which specialist employment law advice is most likely to alter the outcome.

I. The Legal Framework Governing Workplace Investigations

Workplace investigations in Ireland are shaped primarily by:

• The Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. No. 146 of 2000), which, while not directly justiciable, is admissible in evidence before the WRC and is routinely applied as the benchmark for procedural fairness in disciplinary and grievance matters.
• The Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (S.I. No. 674 of 2020), which provides specific procedural guidance for bullying complaints, including defined terms of reference, confidentiality obligations and indicative timeframes.
• The Employment Equality Acts 1998–2015, which govern investigations touching on discrimination and the employer’s positive obligation to investigate harassment complaints promptly and effectively (see, e.g., A Worker v A Hotel [2010] 21 E.L.R. 72).
• The Unfair Dismissals Acts 1977–2015, under which the reasonableness of an employer’s investigation is a central consideration in assessing whether a dismissal arising from misconduct was substantively and procedurally fair.
• The constitutional and common-law doctrine of fair procedures, which applies independently of contract and cannot be excluded by an employer’s internal policy.

None of these sources mandates a single procedural template. What they share is an insistence that the process be proportionate to the seriousness of the allegation, conducted by a sufficiently impartial decision-maker, and capable of withstanding retrospective scrutiny.

II. Threshold Question: Is a Formal Investigation Required?

Not every workplace disagreement warrants a formal investigation. Employers should first assess whether the matter is capable of informal resolution, or whether the nature of the allegation — its seriousness, its potential to found disciplinary action, or its proximity to a protected characteristic under equality legislation — requires a structured process.

Matters more likely to require formal investigation include allegations of bullying or harassment, discrimination, serious misconduct, breaches of confidentiality, fraud or dishonesty, protected disclosures, and health and safety concerns. The threshold assessment itself should be documented; an employer that later asserts a matter was “informally resolved” without record of that determination places itself in a weaker evidential position.

III. Defining the Scope of the Complaint

Before an investigator is appointed, the employer should reduce the complaint to its constituent factual elements: what is alleged, when and where it is said to have occurred, who was involved, what witnesses or documentary evidence may exist, whether the matter has been raised previously, and which internal policies are engaged.

This exercise is not a formality. An investigation framed too narrowly risks failing to address the substance of the complaint — a defect frequently relied upon by complainants before the WRC. An investigation framed too broadly generates unnecessary cost, delay and workplace disruption, and risks drifting beyond its evidential foundation.

IV. Consistency with Internal Policy

An employer’s own grievance, disciplinary, dignity-at-work and equality policies form part of the contractual and procedural landscape against which any investigation will be assessed. The 2000 Code of Practice underscores the importance of clearly documented and consistently applied procedures. A recurring feature of successful WRC complaints is the employer’s departure — without adequate justification — from its own stated process. Before an investigator is appointed, the applicable policy should be identified and, insofar as possible, followed.

V. Selection of the Investigator: Independence and Impartiality

The investigator need not, in every case, be external to the organisation. The governing standard is one of sufficient independence and impartiality having regard to the nature of the allegation. Relevant considerations include the investigator’s seniority relative to the parties, any pre-existing relationship with those involved, and the extent to which the investigator has already formed, or is perceived to have formed, a view on the matter.

The gravity of the allegation is directly proportional to the degree of independence required. Where a complaint is made against a senior employee, or where the internal pool of potential investigators is compromised by proximity to the parties — a common difficulty for smaller organisations without dedicated HR or legal functions — engagement of an external investigator or employment solicitor should be considered.

VI. Terms of Reference

A properly constituted investigation proceeds under written terms of reference specifying: the allegations under investigation; matters expressly excluded from the process; the identity of the investigator; the procedure to be followed; the individuals to be interviewed; the categories of evidence to be considered; the anticipated timeframe; and the manner in which findings will be reported.

The 2020 Bullying Code of Practice specifically contemplates terms of reference of this kind in the bullying context, and the same discipline is good practice across all categories of complaint. Terms of reference perform a dual function: they constrain the investigation to a defensible scope, and they give the parties clarity as to what is, and is not, being determined.

VII. Preservation of Evidence

The employer’s evidential obligations arise from the outset of the complaint, not from the point at which litigation becomes likely. Relevant material — correspondence, workplace messaging records, contracts, policies, prior complaints, performance records, meeting notes, CCTV footage (where lawfully obtained and processed in accordance with data protection legislation), attendance records and witness statements — should be identified and preserved.

The objective of the exercise is the establishment of fact, not the construction of a favourable record. Selective retention or destruction of material is not merely poor practice; it materially weakens the employer’s position should the matter proceed to adjudication, where adverse inferences may be drawn from evidential gaps.

VIII. The Interview Process

Interviews are typically conducted separately with the complainant, the respondent to the allegation, and relevant witnesses. The respondent must be given a genuine and adequately particularised opportunity to understand the case against them and to respond to it — the practical application of audi alteram partem. Witnesses should be questioned in a manner designed to elicit fact, not to confirm a conclusion the investigator has already reached.

Allegations must be put to the employee with sufficient specificity to allow a meaningful response; a general or vague recitation of concerns is unlikely to satisfy the fair procedures standard applied by the WRC and the Labour Court.

IX. Confidentiality

Confidentiality obligations attach throughout the investigative process, and are expressly addressed in the Bullying Code of Practice. Confidentiality is not, however, absolute: information must necessarily be disclosed to those directly involved to the extent required to allow a fair response to the allegations made against them. The governing principle is restriction of disclosure to those with a genuine need to know, balanced against the requirement that the process remain fair to all parties.

X. The Prohibition on Premature Conclusions

Perhaps the most frequent procedural failing in workplace investigations is the pre-judgment of outcome. An investigator’s personal familiarity with, or opinion of, a party — however genuinely held — is not evidence, and cannot substitute for a fact-finding process conducted with an open mind. Findings must be traceable to the evidence gathered during the investigation itself, not to assumptions formed in advance of it.

XI. Investigations Involving Bullying or Harassment

Complaints of this nature warrant particular procedural care given their potential consequences for both parties and the heightened statutory guidance applicable to them. The process typically comprises an initial assessment, consideration of informal resolution, formalisation of the complaint in writing, appointment of an investigator, interviews with the parties and relevant witnesses, evaluation of the evidence gathered, preparation of a written report, and an opportunity for the parties to comment on the findings before any further action is taken.

Critically, the investigative and disciplinary functions should, where practicable, be kept distinct. The investigator’s role is to establish what occurred; the decision as to any consequential action is properly a matter for management, applying the ordinary disciplinary procedure, once the factual findings have been made.

XII. Suspension Pending Investigation

Suspension is not, and should not be treated as, a disciplinary sanction. Its use should be assessed by reference to the seriousness of the allegation, the risk of interference with evidence or witnesses, the potential impact on colleagues, and whether a less severe alternative — such as a change of duties or reporting lines pending the outcome — would adequately address the concern. Where suspension is considered on full pay pending investigation of an alleged disciplinary breach, this is recognised as permissible under the applicable Code of Practice, but the decision carries independent legal significance and, in contentious cases, should not be taken without advice.

XIII. The Investigation Report

The concluding report should set out the allegations investigated, the process followed, the evidence considered, the interviews conducted, the factual findings reached, and any material conflicts in the evidence, together with the investigator’s conclusions insofar as they fall within the agreed terms of reference.

The report should be confined to what the evidence establishes, as distinct from inference or assumption as to what may have occurred. This distinction is frequently determinative where an investigation is subsequently examined by the WRC or the Labour Court.

XIV. Post-Investigation Outcomes

The completion of an investigation does not necessarily conclude the matter. Depending on the findings, appropriate outcomes may range from no further action, through informal resolution, mediation, management intervention, policy revision or additional training, to formal disciplinary proceedings. Where disciplinary action is contemplated, it must proceed as a distinct process, affording the employee the full procedural protections applicable to disciplinary matters — the investigation report is an input to that process, not a substitute for it.

XV. Recurring Procedural Failures

Experience of employment disputes in this jurisdiction indicates that the following errors recur with some regularity: investigations commenced without a defined scope; appointment of an investigator with an actual or perceived conflict of interest; mischaracterisation of a substantive complaint as a mere interpersonal dispute; failure to interview material witnesses; premature conclusions reached in advance of the evidence; conflation of the investigative and disciplinary functions; unexplained delay; and inadequate documentation of the process undertaken. Each of these defects has, in reported determinations, formed part of a successful complaint against an employer.

XVI. When to Obtain Legal Advice

Not every complaint requires the involvement of a solicitor. Early legal advice is, however, strongly advisable where the allegation involves serious misconduct, bullying, harassment or discrimination; where a protected disclosure may be engaged; where a senior employee is implicated; where suspension or dismissal is under consideration; where the employee has indicated an intention to bring a WRC complaint; or where the employer is uncertain as to its own procedural obligations. Advice obtained before a significant procedural step is taken is considerably more valuable, and less costly, than advice sought after a defective process has already been set in train.

XVII. Concluding Observations

The distinction between conducting an investigation and conducting a defensible investigation is not one of degree but of kind. A defensible investigation is one that begins with a clearly defined allegation, proceeds under an appropriately independent investigator, follows a documented and proportionate procedure, preserves relevant evidence, affords each party a genuine opportunity to respond, and reaches conclusions that are traceable to the evidence gathered rather than to assumptions formed in advance.

For Irish employers — and particularly for SMEs without dedicated in-house HR or legal resources — the commercial and legal risk of a poorly conducted investigation frequently exceeds the cost of obtaining early, targeted advice.

Frequently Asked Questions

Does every workplace complaint require a formal investigation?

No. The appropriate response depends on the nature and seriousness of the allegation and the employer’s own procedures; some matters are properly resolved informally.

Who is entitled to conduct a workplace investigation?

Any person sufficiently competent and impartial for the circumstances — an internal manager, an HR professional, or an external adviser, depending on the seniority of those involved and the gravity of the complaint.

Does the Code of Practice address bullying complaints specifically?

Yes. The Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (S.I. No. 674 of 2020) provides dedicated guidance on the investigation of bullying allegations.

May an employee be suspended during an investigation?

In appropriate circumstances, yes, typically on full pay pending investigation of an alleged disciplinary breach — but the decision must be based on a considered assessment of the specific circumstances, not applied as a default response.

Does an investigation automatically result in disciplinary action?

No. The investigation establishes the facts; any subsequent disciplinary decision is a separate process governed by its own procedural requirements.

What if an employee indicates an intention to bring a WRC complaint during the investigation?

The employer should avoid a defensive or reactive response. The allegations, evidence, applicable procedure and legal risk should be carefully reviewed, with specialist advice sought where the matter is serious.

Can the conduct of an investigation itself be challenged before the WRC?

Yes. The adequacy of an employer’s investigative process is frequently a live issue in WRC proceedings, particularly where an employee contends that fair procedures were not observed. Significant investigations should accordingly be conducted with care and documented thoroughly.

About Green & Associates Solicitors

Green & Associates Solicitors advises employers across Cork and Ireland on employment law matters including workplace investigations, grievance and disciplinary procedures, discrimination, bullying and harassment complaints, unfair dismissal and WRC proceedings. The firm’s employment law practice is informed by a sustained institutional engagement with equality and inclusive workplace practice — an engagement reflected, most recently, in the firm’s receipt of a 2025 Diversity & Inclusion Award. That perspective is not incidental to the analysis above: an understanding of how discrimination and equality claims arise in practice is directly relevant to the design of investigative procedures capable of withstanding scrutiny under the Employment Equality Acts.

For employers, the value of early advice lies less in responding to an escalated dispute than in establishing procedures that are practical, consistent, and capable of reducing avoidable legal risk before a complaint arises.

Green & Associates Solicitors

Horgan’s Quay, Waterfront Square, Cork

Phone: 021 470 8570

Email: info@greensolicitors.ie

Disclaimer: This article is provided for general information purposes only and does not constitute legal advice. Employment law is fact-specific, and the appropriate investigative process will depend on the particular circumstances, the employer’s policies, and the legislation potentially engaged. Employers dealing with a workplace complaint that may result in disciplinary action, dismissal or a WRC claim should obtain specific legal advice.