Claire Benson, Employment Law Solicitor explains

Even the strongest workplace disciplinary cases can unravel — not because the facts are weak, but because the process is. As one WRC decision bluntly put it, “the purpose of an investigation is to establish the facts” (Cathal Hussey v Tesco, ADJ‑00052619). Yet many employers still fall at this first hurdle.

Across recent WRC decisions and High Court judgments, a clear message emerges: fair procedures are not a box‑ticking exercise. They are the backbone of defensible decision‑making.

The Three Pillars of a Disciplinary Process

Every disciplinary journey has three distinct stages:

1. Accusation or grievance
2. Investigation
3. Disciplinary process

Problems arise when employers blur these stages — especially when an investigation starts to look like a disciplinary hearing in disguise.

Fair Procedures: The Foundation of a Defensible Process

The Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) sets out the minimum standards. Employees must:

1. Have allegations put to them clearly
2. Be given a full opportunity to respond
3. Have access to representation- in general by a colleague or a trade union official, as prescribed by the company policy
4. Receive an impartial determination-

As the Code states, procedures must be applied “in a fair and consistent manner… in accordance with the principles of natural justice and fairness.”

The vast swathes of WRC decisions in this area all centre around the core idea that the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other appropriate evidence, factors and circumstances.

What an Investigation Is — and Isn’t

Investigations are fact‑finding, not disciplinary. The courts have repeatedly emphasised that they require fairness, but not the full rigour of a formal hearing.

In O’Sullivan v Law Society of Ireland [2009] IEHC 632, the High Court held that investigators may adopt “less formal and more abridged procedures” provided the process remains fair.

This flexibility is often misunderstood — leading either to overly legalistic investigations or, worse, to sloppy ones.

Common Pitfalls Identified in Case Law

Employers should be aware of the common recurring errors that frequently lead to WRC findings against employers:

• Failure to conduct a thorough investigation
• Pre‑judgment or bias
• Over‑stepping the investigator’s role
• Not providing evidence to the employee
• Poor record‑keeping

In Mullane v Honeywell Aerospace (UD111/2008), the Tribunal stressed that it must be satisfied the matter was “fully and fairly investigated” before any disciplinary sanction can stand.

Best Practice: Protecting the Integrity of the Process

We would recommend following these principals to protect the integrity of your process:

1. Set clear terms of reference at the outset
2. Give clear notice to all participants
3. Provide all materials relied upon
4. Interview the subject of the investigation last i.e. after all other interviewees
5. Recall witnesses where needed
6. Keep detailed minutes
7. Issue a neutral, non‑judgmental investigation report

Justice Charleton’s advice in McKelvey v Irish Rail [2019] IESC 79 is a useful anchor: “the place to start, and often to end, is the contract of employment.”

Reducing Litigation Exposure

The final takeaway is simple but powerful:

1. Have clear policies and procedures
2. Follow them
3. Communicate consistently

A flawed process can sometimes be corrected — but only if the employer recognises the issue early and acts decisively.

Conclusion

The message from WRC and court decisions is clear:
Even the strongest disciplinary case can fail where fair procedures are not followed.

Employers who prioritise fairness, transparency, and procedural integrity will be far better positioned to defend decisions and avoid adverse findings.

If your organisation is dealing with a disciplinary matter, reviewing its procedures, or seeking to strengthen its internal processes, our Employment Law team can provide practical, tailored support. We assist employers daily in conducting fair and robust investigations that stand up to WRC scrutiny. If you would like guidance, training, or a review of your current policies, please contact our team — we are ready to help you reduce risk and achieve best‑practice outcomes.

 

Claire Benson is a Solicitor with the MHP Sellors Employment Team. Claire contributed to a MHP Sellors Employment Law event in 2025, held at the Inn at Dromoland, County Clare, where the subject of employment investigations was discussed with panel contributions from Access HR and Sarah Daly B.L.