Bryan Dunne discusses a recent decision of the Irish High Court which illustrates the risks to an employer when a preliminary investigation goes too far. The key issue for employers, as highlighted in this case, is the risk of triggering a much higher standard of fair procedures and due process in a preliminary investigation. This can occur where the investigator seeks to reach conclusions of fact at the preliminary investigation stage, rather than simply deciding whether there is a sufficient basis on the facts as alleged or evidence gathered to warrant the matter being put to a disciplinary hearing. The practical difficulty that arises where this occurs is that the employer may not have allowed the degree of fair procedures that the type of conclusion ultimately reached requires, and at that point it is too late to adapt to this.
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