The sudden and unprecedented shift to remote work has resulted in many varied challenges for employers amid the coronavirus pandemic. The lockdown has meant that many internal investigations have been either disrupted or parked pending a return to normal. As employers begin to come to grips with the most pressing of challenges, those employers who can, are now attempting to return to “business as usual” including workplace investigations/disciplinaries. Notably, businesses need to proceed and conduct workplace investigations in some shape or form, whether it be remotely or socially distanced in the workplace to avoid a deterioration of the situation for both the employee/s and company. Unfortunately, there is no one-size fits all solution to this challenge. Below we set out some of the primary considerations which businesses should bear in mind.

1. Preliminary considerations  
A company should always adhere to the relevant policy from which the investigation is based. Any employer seeking to continue or commence an investigation must first review the company policy. While very few company policies will directly address the running of investigations remotely, companies will need to ensure that the fundamental requirements of relevant workplace policies are adhered to.

Employers considering carrying out a workplace investigation remotely must also ensure that they can do so in compliance with the provisions of SI 146/2000 (Code of Practice on Grievance and Disciplinary Investigations). In particular:  

• The matter must be fairly examined and processed  
• Details of any allegations must be put in writing to the employee concerned  
• The employee must be given the opportunity to respond fully to the allegations 
• The employee should be allowed to question witnesses 
• The employee must be given the opportunity to avail of the right to be represented 
• The employee must be given a fair and impartial determination,  

The best course of action will vary from company to company and will, in particular, depend on:  

• The type of workplace investigation involved  
• The stage of the process   
• Whether employees are on lay off or working remotely 
• The IT capacities of the employer and relevant employees   
• The provisions of relevant company policies  

2. Options for employers   
Subject to the terms of relevant company policies, employers wishing to carry out workplace investigations remotely may consider one or more of the following options:  

• Suspend the process for the period of the COVID-19 pandemic 
• Continue the process by written letters to the employee/s  
• Continue the process by telephone  
• Continue the process by video conference   

It is likely that where a company proceeds to carry out a process remotely, some combination of these approaches will be required.

3. Communication    
Given the exceptional circumstances and the likely departure from standard practice, it is crucial for employers to properly engage and communicate clearly with parties regarding the procedure. Employers should ensure any concerns are addressed to ensure full engagement and co-operation in the investigation.  

4. Other considerations   
Varied challenges are likely to arise as employers navigate the running of remote workplace investigations. Practical and/or technological difficulties associated with running a smooth meeting may arise. Employers will, therefore, need to be flexible and facilitative throughout.

There will be some investigations for which remote processes may not be appropriate or possible at all, whether by reason of the IT capacities of the employees or the subject matter of the investigation. However, a failure to act in any way because of the pandemic, will not suffice where remote investigations are possible. It will prevent an employer from being able to rely on defence that they took action to prevent or reverse the effects of discrimination or bullying for example.

If you have any concerns about workplace investigations and/or how to conduct them remotely, you can access the SFA’s guide on how to conduct investigations or contact Emma  Emma.crowley@sfa.ie  / 01 6051668