Important Court of Appeal Decision allows NUI Galway investigation to proceed

Formal investigations into employee allegations are not unusual in Irish workplaces. In certain situations, employers sometimes outsource the conduct of such investigations to external HR experts. One of the reasons for this is to remove any allegation of possible bias, the idea being that an external investigator is removed from the organisation and from underlying issues and therefore more likely to ensure a truly independent outcome.

The first task for many investigators (whether internal or external) is to get Terms of Reference in place.

In 2017 the High Court had granted an injunction sought by a respondent employee and in doing so prevented a bullying investigation at NUI Galway from proceeding due to concerns of bias. The High Court in 2017 was persuaded by the fact that the proposed terms of reference for the investigation were sent to the complainant employee for comment but not to the respondent employee (one of nine such respondents) which created an apprehension of bias which entitled the respondent employee to an injunction restraining the continuation of the investigation process.

NUI Galway appealed and, in a recent decision, the Court of Appeal overturned the High Court, effectively clearing the way for the investigation to proceed. The Court of Appeal held that there was not a serious issue to be tried regarding bias and the fact that the investigator did not consult with the respondent employees on draft terms of reference did not, in itself, constitute bias which would justify a court stopping the investigation.

The decision is a positive one for employers and indicates that the courts may require a higher level of proof of bias before halting an investigation. In particular, (in this case at least) not allowing the respondent employees to comment on proposed terms of reference where the complainant had been consulted does not necessarily establish bias.

The Court of Appeal declared that the appropriate legal test in such a situation is an objective one – would a reasonable and fair-minded person with full knowledge of the facts fear bias on the part of the proposed investigator? In this case, the question was clearly answered no.

Additionally, it is important to note that information regarding the investigator, who was a union representative some 20 years ago and had previously represented the complainant employee, was not considered material by either the High Court or the Court of Appeal.

See Nasheuer v NUI Galway, 2018 ICEA 79