Recognising The Value Of An External Workplace Investigator

Author:Ms Deirdre Malone
Profession:Ronan Daly Jermyn
 
FREE EXCERPT

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.

Incident

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...

To continue reading

REQUEST YOUR TRIAL