- Posted by Bernadette
- On August 4, 2011
- Bullying, Harassment, Investigation
UD 705/2008, Denton v Sexual Health Centre, published 2 September 2010.
The claim in this case was one of constructive dismissal and was heard over seven days. It was held that the claimant was not entitled to claim constructive dismissal since the respondent was apparently addressing the issues raised in the investigator’s report when the claimant submitted her letter of resignation.
One aspect of the case that was examined was the internal investigation process. An external investigator (Mr. PS) had been retained to investigate grievances raised by the claimant. In respect of the investigation the Determination states:
“In the within case the claimant initiated a complaint of bullying and harassment dated 28th September 2007, which complaint ran to some twenty-four type written pages. The claimant initiated a further and supplementary complaint dated the 15th October 2007, which whilst not as lengthy, raised a number of serious and compelling matters for the claimant as she saw it. The respondent appointed an investigator and the claimant engaged with the investigator (Mr. PS) in the context of evaluating and investigating her complaints. The investigation was conducted in the period October 2007 – April 2008. The duration of the investigation, whilst lengthy, was warranted having regard to the nature and extent of the claimant’s complaint and the multiplicity of witnesses involved, some twenty-three in all. The Tribunal is satisfied that the investigation was thorough and comprehensive; the final report of the investigator (Mr. PS) is in the order of some sixty-six pages. The Tribunal is satisfied that the investigation could not reasonably have been conducted in a shorter time frame or more expeditiously. Whilst the claimant’s complaint of bullying and harassment was not upheld , Mr. PS identified a number of failures in management practice and procedure.
The claimant was informed of the outcome of the investigation and duly furnished with the full text of the report in or about the middle of April 2008.”
The clarity of the complaints being made was an issue since the investigator gave evidence at the hearing that he had asked the claimant to be more specific about the allegations made and to put them in writing but she declined. He said he did not want the claimant to reduce or redefine her complaints, but just to be more specific in order that he could understand her complaints more clearly. He also said that he tried to match each issue raised by the claimant into the definition laid down by the HSE but found that it was a failure of management rather than bullying or harassment.
Overall, it appears that where the duration of an internal investigation is addressed it will be considered in the light of the complexity of the complaints, the need for clarification, the number of witnesses and the size of the report generated. Based on those issues the Tribunal in this case was clearly satisfied that the timescale was reasonable. Other issues that may create delays in progressing an investigation include the need for parties and/or the employer to seek legal advice as well as the need for cross-examination where this validly arises. Timeliness in investigations is arrived at through the combination of antithetical issues where on the one hand progress must be seen to be made and on the other hand time must be taken to ensure that parties each have adequate time to address the matters of concern. In addition some people may need more time than others, perhaps as a form of reasonable accommodation. However, workplace investigations must be progressed in a timely way and this can only be assessed on a case by case basis. It is the investigator who must ensure that progress is made appropriately in accordance with natural justice and fair procedures. This may not absolve the employer from monitoring the process and where concerns arise for the employer in respect of the progress of an investigation it is our view that it would be prudent to raise it with the investigator.