In this month’s webinar, Caroline Reidy from the HR Suite will outline the importance of getting the proper foundations in place including appropriate polices, procedures and training to effectively management disciplinary and grievance matters.

Rolanda:          Good morning, everyone, and welcome to our webinar with me, Rolanda Markey, from Legal-Island, and Caroline Reidy, managing director of The HR Suite. And you can see there we are. 

                        So just to do a short introduction on Caroline for anyone who's new to us . . . Oh, sorry. Apologies for the name. Katie has put in the wrong name there. Apologies for that. Caroline is a past member of the Low Pay Commission and adjudicator in the Work Place Relations Commission, which is undergoing a fair bit of change itself this year, it has to be said. She has completed a Master's in human resources through the University of Limerick. She is CIPD-accredited and also a trained mediator. 

                        She has quite a bit of experience in HR, so she certainly knows what she's talking about. She's worked for over 20 years in the Kerry Group and the retail and hospitality sector where she was the operations and HR director of the Garvey Group prior to setting up The HR Suite in 2009. 

                        Caroline speaks widely and writes articles and papers on thought leadership in relation to the future landscape of HR and the challenges and opportunities that that presents for employers and employees. 

                        Caroline is a regular speaker at our Annual Review of Employment Law. And this year, she is going to be talking about the difference between bullying and management in light of the new bullying code that came out about. . . Was that December last year that was issued, Caroline? I can't quite remember. 

Caroline:         The very end of December and then came into play in January really. 

Rolanda:          That's right. So Caroline is one of the speakers at our Annual Review of Employment Law, which is on 24 and 25 November. Like last year, this is going to be held online using the platform called Hopin, which has had loads of new fancy developments, so it's going to be even better this year. There are lots of new features, and also we're really looking forward to that. If you're interested, if you want to type "yes" into the question box, somebody will get back to you with information on the Annual Review. 

                        But today, Caroline is going to be talking about discipline and grievance, the sort of bread and butter of employment relations activities in the workplace, and the importance really of having the proper foundations in place to ensure that those procedures go well. 

                        I suppose one of the biggest difficulties is inconsistency in discipline and grievance, and that's certainly what a lot of employers would get criticised about, is not being consistent on how to handle those things. 

                        So Caroline is going to talk over the next half hour or so on what those foundations are and what that looks like. You're very welcome to send any questions if you want. Just click on the wee question box and pop it in there and we'll try and go through some of your questions at the end. 

                        So over to you, Caroline.

Caroline:         Thank you so much, Rolanda. Good morning, everybody. Delighted so many of you have joined us this morning. 

                        I suppose this area is a hugely, hugely topical area, and it's one that continuously comes up as an area for questions. And it's one, particularly during COVID, that has been very challenging, because many of you have had to move to remote, and in terms of dealing with discipline and grievance and managing investigations, etc., it's been done remotely. 

                        My session today is going to kind of cover what is coming up in terms of the most common areas that we get queries on, and also just to remind you of some interesting case law, etc., in this area. 

                        As Rolanda said, always delighted to take some questions, so feel free. If anybody has any questions, I'd be delighted to answer those at the end. 

                        I suppose the starting point for me in the whole area of discipline and grievance is the importance of meeting our legal obligations by ensuring, under the Miscellaneous Provisions, that the employee gets their statement of terms, and under the Terms of Information Act, that they get their contract of employment within two months. 

                        And even though you have five days to give them the statement of terms and two months to give them their full contract, most employers will organise to give them their contract at the get-go. And with their contract comes their staff handbook. 

                        We've had loads and loads of case law reiterating the importance of "What does it say in your contract? What does it say in your staff handbook? And what do the contractual terms you've agreed with your employees state?" And other than the legislation . . . case law is obviously hugely relevant, but your policies are something that we would rely heavily on if we're going through either a grievance or a discipline. 

                        And for me, that's something we should be reviewing on an annual basis in terms of your staff handbook to make sure that it is up-to-date. As you'll see from the Annual Review and as you're aware of already as a practitioner, the amount of change in terms of different elements of the legislation that has changed so much in the last 18 months, to make sure that we're reflecting all of that in our contracts and in our handbook. 

                        Particularly in the area of discipline and grievance, one of the key changes relevant to that is the new Bullying Code of Practice. And that new Bullying Code of Practice means that we need to update our grievance procedure to reflect the fact that if you now have a grievance to do with an allegation of bullying, it needs to go through the preliminary stage of screening by that nominated person. That's a big development. 

                        And that Bullying Code of Practice, it's been an area that we've been working very closely with clients on. We've a lot of public training for both nominated persons to do the preliminary screening and for contact persons, because it's significant in change.

                        And it's not just an employment law change. It's also a health and safety change, so it has huge weight, I suppose, in terms of making sure we meet our obligations in relation to that Bullying Code. 

                        And even though it's a code . . . normally the codes are best practice recommendations. Well, in this code, it highlights that failure to ensure we're compliant with the code can be relied on if an employee takes a claim via the WRC, etc. 

                        So it has very significant weight to ensure that as you're thinking about your grievance procedure, you clearly differentiate between the fact that if an employee has an alleged allegation of bullying, that needs to go through the dignity and respect or the bullying and harassment code, depending on what you called your policy. And again, that preliminary screening by the nominated person. 

                        Ultimately, when that nominated person does that preliminary screening, they need to provide a written report to show how they've assessed the complaint and how they've decided whether or not it meets the criteria to be put forward for investigation in line with the bullying and harassment or dignity and respect at work policy, or whether it might meet the criteria of inappropriate behaviour and then goes back to the grievance procedure as a result. So that's a very significant change for us as practitioners as we now deal with grievances. 

                        Another consideration I would say is there's a separate harassment code of practice, which is coming from IHREC and is in place for a number of years now. For many companies, you may decide to incorporate the discipline and grievance policy into one, but you may also consider to culminate the bullying and harassment policy into one and streamline it. 

                        For a lot of employees, they use the words bullying and harassment nearly interchangeably and not maybe fully understand the difference between bullying being repeated inappropriate behaviour and harassment being very specific to the nine equality grounds. 

                        So just think about how you differentiate that, how you manage that, and again, how are you going to reflect that in your policy, because I think that's a very important element of that. 

                        I suppose the next key consideration in relation to all of this is if you update your policies in crucial areas, I believe that you need to retrain people, make them aware of it, and get them to sign up and accept the changes, particularly in something as significant as your bullying code of practice and your discipline and grievance procedures. 

                        And even though we do it at induction, refresher training is very important, and updating your handbook, etc., is one element of that. And then maybe doing refresher dignity and respect at work training would not alone be very proactive in terms of eliminating issues, but also would be very proactive in terms of meeting your vicarious liability. 

                        As we deal with discipline and grievance, a lot of it comes back to the employer to show that they've done and taken all reasonably practicable steps to prevent the issue and also to make the employee aware of their responsibilities. So I think that will be a very good approach. 

                        I suppose in keeping then with your policies and procedures, being very clear that you have covered all what I call the deal-breakers within your organisation and they're clearly outlined in your policies so that an employee in your organisation is really clear that if they breach X policy, that will have very serious consequences. 

                        Again, when you get down the road of a disciplinary or the road of a grievance, we want to be able to have clear guidance that we're following a specific, consistent policy rather than leaving a lot to the discretion of the investigator or the outcome manager, etc., depending on what process that we're involved in. So again, a lot of food for thought in relation to that. 

                        I suppose the remotely managing investigations and the remotely managing discipline and grievance is something now we're very used to. The importance of making sure that you do a trial run with the parties if that's relevant. If somebody is nervous or maybe a bit uncomfortable, etc., that would be something that I would encourage, and making sure that we're very proactive in relation to that. 

                        The other key area in relation to all of this is to ensure that we have really good trained people on the floor in terms of managers, in terms of contact persons. And as you know, it's an obligation to train your contact persons in relation to the Bullying Code of Practice. 

                        The great thing about the contact persons is their job is to quench the fire and act as signposts. A lot of the time somebody wants somebody to vent and somebody to kind of be the listening ear, but also that person is designed to signpost them and help them understand what options are available to them from the informal stages right up to the more serious stages, and also to outline, for example, the preliminary screening step, etc., the two informal stages, and also to outline the fact that what the grievance procedure looks like as separate to that. 

                        Again, those contact persons have a very important role and we have an obligation to ensure that we have those named within our organisation. So again, a definite one that has been a high priority for a lot of companies this year. 

                        I suppose I'm always so empathetic to line managers. A lot of line managers say to me, "Caroline, just because I was a really good accountant or I was a really good production person, now all of a sudden I'm spending more time dealing with HR than I am doing the day job". As you get promoted, you get the gift of people, and oftentimes, we don't spend enough time training our line managers. 

                        And in relation to handling grievances and nipping them in the bud and proactively doing that, I think that's a really important job that can really help us as HR practitioners. They end up nipping things in the bud early without them escalating. Oftentimes, by the time it gets to HR, the issue is way bigger and you always say, "God, if only I was involved at the earlier stages, mediation or a facilitated discussion or other initiatives would have resolved the issue at an earlier stage".

                        So next, I'm going to talk to you and just remind you in relation to the rules of natural justice and what has come up as key challenges and key discussion points in relation to the rules of natural justice. 

                        And the starting point is making sure that the person is clear in relation to what is the allegation that has been made against them. For me, that's an area that we get wrong more often than we get right. Sometimes we build a case on the person, which is nearly entrapment before we get to the investigation. More times, we have a very loose allegation, or sometimes we've too specific an allegation. 

                        So it's important to give time and consideration into what is the actual breach, or what is the actual allegation that we're investigating and what policies are relevant here. And make sure that the investigator, in turn, is clear, or the person who is resolving the issue if it's at a more informal stage, and also being very clear that all the parties involved are very clear in relation to what is the allegation. 

                        A big N.B. in relation to the person has the right to know what is the allegation against them and the clarity of that. 

                        Obviously, to complement that, they need the right to have the information to obviously address that issue, and that goes hand in hand with that. So again, making sure that if you have evidence that you're going to rely on, you do facilitate the employee to have that information and get an opportunity to respond to it. 

                        I want to tell you about an interesting case, which I thought was really relevant in relation to a grievance. This was a constructive dismissal case which went to the Labour Court. And in this scenario, the case was against Cope Limited Galway.

                        In this scenario, an employee raised a grievance. And in terms of raising the grievance, the company were trying to resolve and deal with the grievance, but in the intervening time, the employee resigned, subsequently then took a constructive dismissal case, and the WRC awarded €8,400 in relation to her constructive dismissal. However, when it went to the Labour Court, they said, "She didn't give the organisation a reasonable amount of time to resolve the issue". 

                        And I think that's a really important N.B. to everybody, because sometimes we can be really not timely. To be fair to them, from when she raised her grievance, they promptly tried to resolve it and she resigned within two weeks, which, again, wasn't a reasonable amount of time for the organisation to address her grievance. So timeliness, to me, is a hugely important principle. 

                        And sometimes when you get an external investigator, for example, they might say, "Well, look, I'll be able to start it, but I'm not available for two weeks. " To me, then, you need to go to another investigator, because timeliness is crucially important in relation to showing that we're not frustrating the process. 

                        And reasonability has to come into play because we've got generally two parties involved in a lot of these, and you've got both very stressed parties. Of course, we're going to offer them the employee assistance programme. Of course, we're going to offer them HR advice and support in terms of making sure that each of the parties . . . we acknowledge that both parties are innocent and they have somebody that they can go to if they've queries, etc., as they go along the way. 

                        I suppose the employee needs to give the employer the opportunity to resolve and investigate the matter, but we have to ensure also that we're doing it in a very timely way. 

                        I also spoke about the competent manager whose early intervention will be very helpful, but sometimes if they're not well trained, they may not have brought the issue in a timely way to your attention, even though the employee may have brought it to them. So again, I think that line manager training is relevant there as well. 

                        Under the rules of natural justice as well, we have the right to representation. We've lots of case law in this area, but make sure that your policy doesn't remain silent on it. Make sure that you have clearly outlined what's relevant to you in your organisation in terms of who it is that they can have. Rather than saying, "You can have a representative", be clear in relation to what your policy is in relation to what that representative is in terms of potential parties, and also in relation to their role. 

                        For me, the representative is somebody who's there to support the person, but they're not there to answer queries on their behalf. And when I'm doing any form of engagement, whether it's a discipline or a grievance, I would always outline that at the start to say, "Look, we appreciate the fact that you're here as a support, but it's important that the person answers the questions on their own behalf. But I will give you a chance to add anything you want at the end". It is important you get the evidence from the individual rather than through a third party. 

                        I mentioned the importance of the employee assistance programme and offering support to all the parties, and that can't be underestimated. A lot of the time, we end up having one or both of the parties absent due to work-related stress or due to sick leave associated with the issue, so the more we can do to provide support for the parties and the more we can do to show that we're compassionate and understanding, yet not taking sides, remaining objective at all times. But again, make sure from the very outset that that is encouraged and offered to all of the parties.

                        If there are delays in relation to somebody being out sick or somebody being unwell, I would always suggest that you would write the person and explain that, "Look, our hope is that we're in a position to offer the opportunity for you to come and do the investigation", either remotely or in whatever way that the person feels comfortable and open to options as to what they might suggest once they're medically certified to do so. 

                        So the importance of getting that medical certificate to confirm, because oftentimes the doctor or the practitioner will realise that the reason they're absent is because they're involved in this process, so them obviously engaging in it is helpful. So again, an important point to note in relation to that. 

                        And again, in our sick policy or our absence policy, we'd also always outline the importance of being able to engage with your employees when they're out. Again, for purposes like this, we need to do what we can to help them return to remedy the situation in whatever way we can. 

                        So, if I move next to suspension, for me, I suppose, and for the case law, suspension has become a lot less used than it used to be, because suspension now is not a case of anybody who's part of an investigation we automatically suspend them. Instead, suspension obviously is always paid because the person is innocent and is undergoing a process, but normally now you would only suspend if there is a risk in terms of health and safety or a risk of tampering with evidence. So you need to have a fairly decent reason as to why you might suspend somebody. 

                        And you'd always write to the person to say, "Look, I'm suspending you for the purposes of ensuring . . . I'm giving you a chance to prepare for the investigation, etc." 

                        It doesn't imply any wrongdoing, but tread carefully in relation to suspension. It's not something that I would be doing as often, and definitely, I would just be cautious in relation to it. 

                        I suppose the other area is that separation of process, and a lot of investigations fall on separation of process. And it's not necessarily the punishment didn't fit the crime. It's the fact that the process was flawed in relation to that. So again, think about your separation of process before you ever start getting involved in any process. 

                        I suppose it's become more challenging for HR departments, because if somebody now raises an allegation of bullying, you need to have a trained contact person, first of all, that they can go to, to get signpost advice, etc. Normally, they're not from the HR department, but in some organisations, they are. But again, a number of contact persons that are available to the person. 

                        Next, you need to have somebody who's going to do that preliminary screening stage to decide if it meets the bar for it to be investigated. 

                        After that, you know if it does meet the requirement. And again, that's a competent person, that nominated person, and the people who are attending that training are competent HR professionals who are very experienced. But this is a new avenue for them and that report has to be . . . You have to produce a written report, which is the requirements of the code, to explain why you either have said it does meet the requirements or whether it doesn't. Yet you're not doing a full investigation, because obviously, that's to come. So it's a tricky one in relation to that nominated person and preliminary screening role. 

                        And then if it goes further than that, you need to have somebody who's going to do the investigation, again, who is a trained person. As we all know, the investigator has the most important job. It's quite a heavy workload in terms of being able to get through meeting all the parties, the witnesses, etc., and producing that very comprehensive written report that is the key document that's going to go forward for the outcome manager to decide and for the appeal manager. 

                        So as you can see, the number of people internally in an organisation is quite a lot. I suppose a lot of organisations are using companies like us now to do potentially the preliminary screening or the investigation, etc., because they simply don't have the bandwidth. 

                        Hence, we've been hugely busy since the new bullying code has come into play, and we're looking to increase our team specifically to help with investigations, preliminary investigations, training investigators, etc., because this has grown so much as a key area of the business. 

                        So again, as I say, recruiting people for that kind of work is really reflective then of how much a burden it is on internal HR departments. 

                        So that separation of process, be really careful. Remember, if you're the HR person advising the parties, you can't be advising the investigator, and you can't be advising the person who's doing the appeal, and you can't be advising the person who's doing the outcome, because then it could be seen that you are the person who's making the one influence over all these people. So just be careful that there is none of that. 

                        I suppose, ultimately, that's the key flaw that often happens, where HR are behind the scenes and when somebody is under cross-examination . . . which we all now know is under oath in the WRC and in the Labour Court. But when you ask somebody, "Who influenced you and what guidance did you get?" and when they say, "Well, I ran Caroline in HR and she said X", and then you ask the other person in the other stage and they say the same. So be careful in relation to the fact that you're not advising them on . . . 

                        Obviously, you can advise them in terms of procedure, but that you're not advising them in relation to, "Well, I think this is gross misconduct. Therefore, a sanction should be". So that's the piece that we need to be very careful of. 

                        And sometimes that can be very difficult, because a lot of time if you have an inexperienced person, they're relying on you to give them that guidance. So again, getting the competent person is really important at that early stage.

                        I suppose proportionality of sanction and the punishment fitting the crime is the other key area, and making sure that we have reasonableness. And there are a few criteria in relation to that. One is what does the policy say? So again, what does the policy clearly say? For me, did the person know what they were doing was wrong? And did they still continue to do it? 

                        We've had a lot of issues around theft, fraud, bullying lately, and, for me, that's a key crux of an investigation. Were they fully trained? Were they aware? Was the policy in place? And did the person know what they were doing was wrong? 

                        Intent has to be a factor that we do consider and also that vicarious liability and that reasonableness in terms of "Has the employer done everything practicable to ensure the person was trained and was aware in relation to what they were doing?" So again, thinking about that proportionality of sanction, you're thinking always about, "Was it fair and was it reasonable?" 

                        You're also thinking about, "What custom and practice have we?" So if somebody did something similar, say, 12 months ago, or 18 months ago, or 2 years ago, or whatever the case may be, what punishment fitted the crime at that stage? again, we need to take that into account because we've set a custom and practice in relation to that. 

                        So again, what is the policy? What is our custom and practice? And then has the person any mitigating circumstances? A lot of the time, an issue with a person is transient. Something happened, but they may have personal circumstances or may be going through a difficult time, and you will always take that into account and try and support them in any way they can. 

                        Obviously, if it's more serious and significant issues, like somebody tells you that they have a drugs or alcohol issue, obviously, we have an obligation to try and provide reasonable accommodation and to assist them in whatever way we can, because obviously, they are considered to be disabilities in line of the legislation. So always take those mitigating circumstances into account. Hugely significant in helping arrive at that decision.

                        I suppose my final points are in relation to the importance of the paper trail. So using my last point there of saying, "What factors did you take into account to come to your decision?" the person who's reading your investigation, or who's reading your outcome, or who's reading your appeal, without ever having to talk to you, should understand your rationale as to why you've arrived at whatever decision you've arrived at. 

                        So make sure that you really consider how you've reasoned that, because the more you reason that in your document, the same as with the preliminary screening for bullying, the more accepting it's likely the person is going to be of your decision, whereas if you just give them a one-liner to say, "I uphold it", or, "I don't", or, "I find that you breached it in a . . .", that's not going to meet the criteria normally. They're going to end up appealing it much more likely, or feeling that they didn't get fairness or they didn't feel they were heard. 

                        So that's why those comprehensive investigation reports, and that's why those comprehensive documents, are really important. So the paper trail is just vital, because ultimately if this goes to a third party, it's going to be the paper trail that we're going to have in relation to all those invites, in relation to any emails that were sent, etc. 

                        And that nicely leads me on to my final point, which is the whole area of GDPR and data access requests. I suppose it's hugely common now that somebody will come back if they're subject to a grievance or disciplinary and ask for a data access request in relation to all their documents and all their files. So we need to be proactive to ensure that we have a very clear paper trail and we also are clear in relation to the emails that are being sent are very sensitive to the fact that they could be subject to a data access request at a later stage. 

                        I suppose, to me, the procedures that we follow in relation to training managers . . . because a lot of time we need to involve managers at different levels to assist because the HR department, as I say, won't be robust enough to be able to do all of those with their own workload because of the fact that these are all very timely matters when they get involved. 

                        I can't underestimate the benefit of mediation when grievances are interpersonal-conflict-related. And to me, making sure you have mediation as an option within your policy, I think, is hugely helpful, particularly when it's linked to interpersonal conflict.

                        Rolanda, that's a good overview of the key elements in relation to the whole area, and that's really topical, I think. I've tried to pick what for us is coming up now as the most topical areas, so hopefully, that has been helpful to those listening this morning. And I'd be delighted to answer any questions that people may have as well, Rolanda. 

Rolanda:          Certainly, Caroline. There have been quite a few questions, and so we'll try and go through as many of them as we can.

                        First of all, we'll go back to something you said earlier about the allegation and providing that in advance of the investigation discipline. We've got a couple of questions asking the same thing. 

                        How much detail do you have to have in that allegation at the early stages? If you do an investigation, you might get more information, so what you're then communicating at the disciplinary stage is maybe a bit more detailed than at the investigation stage, or maybe altered slightly as you investigate it. Would that be the norm? And is it okay to have less detail at that early stage? 

Caroline:         So the answer is I'd always try at the start to keep it as broad as possible. Broad but clear. 

                        For example, it's a grievance, or somebody has given an allegation, of something or somebody has committed alleged theft or fraud, and the important word in all of those is alleged. When we're giving the person the allegation, we're giving them, "It's alleged that you have breached the expenses policy on the following dates where you claimed for additional expenses than what were potentially due. The following are the specific details". You're giving them a copy of the expense claim forms and you're letting them know that further information in relation to this allegation may arise as a result of the investigation. 

                        But this is the preliminary detail at this stage as we know it. So now you have backed up the allegation to a breach of expense claims. 

                        If you went and you did your investigation and you found out that they were also doing something else, some other element, that would form a new investigation if it's unrelated. But if it's still linked to fraudulently claiming money that they weren't due, that can all be added in as part of that overall investigation. 

                        So you're clear enough that they know it's breach of expense claims. They're clear enough to know these are the dates that you're referring to. But you're also saying, "And further information and evidence may come to light, which will be presented to you in due course". 

                        Sometimes it's only when we meet the person who maybe is the person who has raised the grievance or the person who has been working in relation to that department, it's only when we continue the investigation that we might get the more detail. But you want to give them that level of detail at the start, Rolanda.

Rolanda:          Okay. And in relation to the companion or the representative that they can bring to their hearing, we've had a wee question about that in terms of who can that be and what their role is.

Caroline:         So I suppose the S.I.146 is still the key document that's in place in relation to that. And in that document, it says a work colleague, a trade union representative, or a solicitor, a legal person. However, we've a lot of case law in relation to when is it relevant for that solicitor, for example, to be involved. 

                        Obviously, the work colleague is in every policy. That's kind of the fallback position. The trade union official is generally only outlined in union houses, union organisations. A lot of my clients that are U.S. multinationals, etc., they would refuse to have a union rep to be involved, because that's not part of their policy or their custom and practice. 

                        And then a solicitor, I suppose, depends on what your policy is. Also, a lot of solicitors don't want to be involved at that early stage. And second of all, it may not help the process. Again, there's a lot of case law, as we're all aware, that says that it shouldn't necessarily be necessary unless there are exceptional reasons where that might be necessary. 

                        So the importance for you, when you're drafting your policies, if you just say, "You can have your chosen representative", in effect you're saying, "You can have anyone you want". 

                        And for me, as an investigator, when people have family members, when people have a lay litigant support them that's not a trained professional, it can become very emotional and it can really go off track, whereas a union official, or somebody who is a trained professional, at least they're very clear on what their role is. And even though they might try and interject, etc., there would be a mutuality of understanding that we're here to get the person to give the evidence. So it's generally most effective if the person has a work colleague or a person has a union representative. 

                        And there's always loads and loads of debate on, "Is that not unfair?" The company has maybe a trained professional like me, or has a very experienced internal HR person, and the person doesn't have anyone with them. So the debate can continue, but it's whatever you feel you need to put into your policy. That's what's going to be relevant in relation to that. 

                        And again, I'd always consider any objections that are raised, whether it's concerns in relation to the investigator, "I'm not happy because it's Caroline from HR and she goes to tea with my manager and I feel that I'll be disadvantaged". I'd always take that into account and consider an alternative investigator.

                        Perception is reality when it comes to fairness. The same as if somebody said, "Well, I really want this representative", I would absolutely give it consideration. And my approach always is to consider everything and then give a good-reasoned rationale as to why you've come to a specific decision. 

Rolanda:          And just when you're considering everything . . . there was a question in there earlier about suspension. And you mentioned suspension being something that's not as used frequently because of the implications for their working relationship. But would, for example, and this is the question, cash theft be grounds for suspending somebody while you investigate?

Caroline:         Again, you've got to be careful because you can't presume the person is guilty. So what I would do in a scenario like that is I'd likely consider suspending them, but I would say, "Look, I'm suspending you on the basis of facilitating you to prepare for your investigation", or, "I'm suspending you so that you don't tamper with evidence, for example". Something like that. 

                        But again, the other point, a lot of clients when I say, "You know if you suspend them that they'll have to be paid?" . . . The importance of making sure that if you suspend, you make the person aware of the fact they need to be available for meetings with 24 hours' notice. They need to be available. The person isn't a case that they're on holidays. They need to be available to partake in the investigation.

                        And whether you decide giving them two days' notice so they can have an appropriate representative or whatever, that's your judgement call in line with your policy. But they need to be available normal working hours. And I would stress that when you do meet the person and put them on suspension. What we find is when people go out on suspension, they can delay the process an awful lot as well. 

                        So again, just think of all the factors. And absolutely, there are times that the person has to be suspended because the worry is more wrongdoing could occur, or there could be an issue of health and safety, or an issue of further fraud or theft or covering up of what has been done, etc. So absolutely, they're all valid reasons to do it, but make sure you have a very good paper trail that goes with it to show that it's not you implying any wrong. 

Rolanda:          Yeah, and I suppose sometimes the difficulty with suspension is if the disciplinary and the investigating and everything takes a long time, and that person has been out for longer, it makes it more difficult for them to come back to work eventually. It's really just about treating each case on its own merits and deciding whether a suspension is appropriate or not. 

                        Loads of questions coming. Just looking over here a wee second. Could we maybe just clarify . . . There've been quite a few questions in just about the various roles, because you were talking about the bullying code, and you've got your contact person and your nominated person, your investigators. 

                        So let's take a small organisation with one HR person. Where does their role fit in, do you see, in terms of, for example, investigating bullying complaints with your contact and nominated and all of that?

Caroline:         So I would say in a small organisation with one HR person, you're likely to train a line manager or one of your senior managers as your contact person. You may train two depending on the size of your organisation. So people, if they don't like Johnny, they can go to John. They have options. But I would definitely say the contact person is somebody that's not you as the HR person. 

                        The nominated person, again, can be somebody that you train, and the necessity to train them is important because, remember, if they have to do what is a preliminary screening to say, "Does it meet the criteria?" if you were the only HR person, you can't necessarily do it for them. So you need them to be trained and competent to do it. Hence, you should consider getting them trained. 

                        As I say, we're offering all this different type of training, which is hugely popular as a result. So you have your nominated person who does that initial screening. 

                        I would say, as the HR person then, it's likely that you will do that full investigation if it goes to investigation stage. To me, the investigation is the hardest job. 

                        But then, if you're the only HR person, you need to say, from a bandwidth perspective, have you enough bandwidth to do it? You can outsource, and the code says that, any of the stages that you want. So you can get, for example, us or somebody else to do the preliminary screening stage if you don't have somebody trained in-house. But you do need in-house contact persons. 

                        And then I would say if you're the HR person who has done the investigation, one of your senior managers would do the outcome to decide what sanction is appropriate, if any. And then it's likely you'll outsource the appeal again because the bandwidth of separation of process doesn't allow it. 

                        Now, for most organisations, they have to do exactly what we've gone through once in a blue moon, because of the fact that you'd hope you don't have that many bullying allegations because you're doing proactive dignity and respect to work training, or you're hoping that you have a good work environment. However, they do happen. 

                        So to meet your obligation in relation to the code is you have your trained contact person, you have your trained nominated person, and you have an investigator who is trained so that they're able to do that. Good terms of reference, good investigation report. Oftentimes if the investigation report isn't good, the outcome manager's job is not going to be right, because they're basing it on that. 

                        And oftentimes, I might be asked to go and be the outcome manager, but the employee comes and says, "Look, I didn't get a fair investigation. I asked for this witness to be met, or I asked for this evidence to be considered, or I asked for these mitigating circumstances to be taken into account, and none of that happened". So it's a flawed investigation. And if you have a flawed investigation, everything falls on that.

Rolanda:          Yeah. We had a question there just sort of following on from that, and it's probably worth clarifying this. So somebody is saying whenever you've conducted your investigation, is it always necessary to then follow disciplinary action after that? I suppose it's just if you do the investigation that's to decide whether you need disciplinary action or not really. So, when you've contacted the investigator, what would the next steps often be, if it's not going to be formal discipline?

Caroline:         So normally, the outcome manager will be the person deciding that, because you as the investigator, your job is to say, "This is the evidence that has been presented". And ultimately, then, the outcome manager is the person that says, "I don't feel that any disciplinary action is warranted", or, "I do". 

                        The reason for that, again, is separation of process. If you let the investigator make all that decision, the person who may have raised a grievance, for example, about a fellow employee may say, "Well, look, I'm not happy with that", whereas at least then you're showing your separation of process, which is really important in relation to that.

Rolanda:          Yeah. Somebody else makes the decision, but it doesn't always mean you have to go through a disciplinary process to decide there's no disciplinary [inaudible 00:43:33], because that's the whole purpose I suppose of doing your investigation. 

                        We still have loads and loads and loads of questions, and to be honest, we're not going to be able to answer them all. But somebody just put in a wee note to say thank you for mentioning mediation, because often it does get forgotten about, particularly with grievances and bullying and harassment, things like that. Mediation often can be quite an effective way to resolve things. 

                        And that brings me to a last point just in terms of informal resolution, Caroline, and the importance of that. Just your feelings on that.

Caroline:         For me, it's all about training line managers. For me, the amount of poor line managers that aren't trained is just . . . it's a huge issue. So I think training line managers for me is a significant necessity. 

                        And just training them on the basics in relation to how to deal with an issue in relation to discipline and grievance, etc., particularly now with the new Bullying Code of Practice, I think it just gives them huge confidence. A lot of people think they're doing the right thing based on whatever approach they're taking, but that might not be the right thing. When it comes to your desk as the HR professional, you're going, "God, I wish I was involved sooner". 

                        Nipping things in the bud often can be done very proactively and positively with a very good outcome based on a facilitated discussion or based on acting as a good sounding board, and that's where the role of the line manager but the role of the contact person is really important as well. 

                        It's a legal obligation now to have them, but they're crucial because they'll either put water on the fire or they'll put oil on it. So pick them wisely and make sure that they're properly trained. That would be my top tip. 

                        I'm a trained mediator. I'm a massive fan of it, particularly for interpersonal conflict. I think it has a brilliant role to play in the workplace. This investigation process, once you get into it, it's a very costly and very time-consuming process, whether it's a grievance, whether it's bullying, whether it's harassment, or whether it's another form of disciplinary, so you don't want to go there if you can avoid it because it is hugely time-consuming. Is that all right? 

Rolanda:          Absolutely. Thank you so much again, Caroline, for your time. That's been really wonderful. 

                        A recording of today's webinar will be available on the website later, and the transcript then with all the notes being discussed will be available within the next couple of weeks. 

                        As I said, you'll see Caroline at our Annual Review on 24 and 25 November. If you haven't already booked, then please do so. 

                        Our next webinar is with RDJ on 17 September, and we'll be back with Caroline towards the end of September. 

                        So thank you once again, Caroline, for your time. Thank you for sending your questions in and for everybody listening. Bye now. 

Caroline:         Thanks, everybody. Bye.