- The investigation will consider all material and evidence before it and a decision will be made by the investigator, on balance of probability, as to whether (i) the matters complained of have occurred in whole or in part, (ii) the matters complained of have not occurred or (iii) that there was insufficient evidence to make a finding.
- Where the investigator finds that the matters complained of have not occurred or that there was insufficient evidence to make a finding then the investigator will note this in the findings of fact and will outline the reasons for this in the report.
- Where there is a finding that the matters complained of have occurred in whole or in part and the investigator has established that there has been a breach of the Policy then the matter will proceed to consideration under the University’s Disciplinary Statute or Student Discipline Procedure (as appropriate). The investigation report may be relied upon during a subsequent disciplinary procedure.
- Where the complaint relates to a member of a University Club, then any subsequent disciplinary process will be in accordance with the University’s Disciplinary Statute the Student Discipline Procedure) and/or under the AUC Procedures (as appropriate).
- Where the Investigator makes a finding that the complaint is malicious or vexatious, the complainant may be subject to the applicable disciplinary procedures. The University recognises that such a finding would generally arise in exceptional circumstances and complainants are supported to come forward with their complaints.
- An officer from Employee Relations or SECCA will be appointed for the purposes of administering the process only and will have no role in the investigation, apart from being a liaison person for the relevant parties and the Investigator.
- The Investigator will issue a term of reference to the complainant and respondent, which will be developed in accordance with this procedure. The terms of reference will outline notional timelines of the investigation which should be adhered to by all parties. The complainant and respondent are required to sign the terms of reference to indicate their agreement as to how the investigation will proceed.
- An independent minute taker, provided by the appointed Investigator will be present during all meetings, unless another method of recording the meetings has been mandated.
- Statements taken during the investigation process including those of witnesses will be provided to both the complainant and respondent to ensure fairness and transparency. The complainant and respondent will be given an opportunity to respond to the statements.
- The Investigator will request, collate, and look objectively at all evidence pertinent to the complaint.
- Parties involved in the investigation have the right to be accompanied during a formal investigation meeting. Employees may be accompanied in a support capacity by a work colleague, trade union official or the Dignity & Respect Support Service adviser or family member or friend. Students may be accompanied in a support capacity by a student advisor / chaplain, a member of the students’ unions or a Dignity & Respect Support Service adviser or a family member.
- Witnesses that are called to participate in an investigation, that are associated with UCD may be accompanied by work colleague/trade union official in the case of employees, or student advisor/chaplain/student’s union in the case of students to act in a support capacity.
- The University will provide reasonable accommodations during an investigation process to ensure the process is accessible for all parties. A translator will be provided where required.
- During an investigation process, parties should be given 5 working days’ notice of the requirement to attend any meetings. Where parties are required to confirm their own statement or respond in writing to another party statement, this should be done within 5 working days.
- In the normal course of an investigation, the Investigator will meet with the complainant in the first instance. The respondent will then be provided with a copy of the complainant’s statement and will be given a full opportunity to respond.
- Both the complainant and the respondent of will be given a fair opportunity to state their position in relation to the allegations made before any conclusions are reached.
- Both the complainant and respondent will be asked to nominate witnesses that are relevant to the investigation. The Investigator can call any witnesses that they deem appropriate with a view to establishing the facts.
- The Investigator may proceed with the investigation notwithstanding the non-attendance of the complainant, respondent or witness.
- The Investigator will give the complainant and the respondent an opportunity to comment on the evidence of others, as it relates to them.
- The Investigator will prepare an Investigation Report (normally compiled within 15 working days of the conclusion of the investigation) and make findings based on all relevant evidence presented. Interview records, including those of witnesses and relevant evidence presented and obtained by the Investigator which are relied on to make findings will be appended to the Investigation Report.
- The complainant and respondent will be given the opportunity to comment on the findings before the report is shared with the HR Director/Registrar.
- The Investigator will provide the final report to the appointed administrator of the process, who will in turn provide it the Human Resource Director/Registrar or nominee. The Human Resource Director/Registrar or nominee will then provide a copy of the final report to the complainant and respondent and such other persons as deemed necessary.
- Where an investigator has made a finding that the matters complained of have occurred in whole or in part, the University may in appropriate circumstances and at an appropriate time in the process take action to support and protect the complainant to ensure a similar situation does not arise in the future. Appropriate action can include but is not limited to separating the parties to different office/classroom locations or ensuring that common areas are not occupied at the same time.
- Following an investigation, the respondent and the complainant are likely to continue to require assistance and support. Some or all of the precautionary measures or different measures may still be necessary and will be assessed on a case-by-case basis, but can include changes being made to academic, living or pastoral arrangements, consideration of steps that could be put in place to seek to ensure that both parties do not come into contact with each other, as well as access to the relevant support services such as Health, Counselling and Employee Assistance Programme (employees only).
- The HR Director/Registrar or nominee and the local management team, will consider how best to manage the relationship between the complainant and the respondent and where possible and appropriate, ensure a return to normal practices/and a professional working or study relationship. This will be done in consultation with the complainant and respondent and will be case specific depending on the nature of the complaint.
- The complainant will be informed and provided with the necessary supports when precautionary measures are lifted.
The appointment of external investigators
Independent investigators are appointed by either the ER unit, in employee related cases or SECC in student related cases, to conduct all formal investigations. The objective of the investigation is to ascertain the facts relating to the alleged incidents and to make a finding, based on the balance of probabilities as to whether the complaint is upheld in whole or in part or is dismissed.
Selection of investigators
UCD uses a panel of external investigators that are independent to the University and will only be selected where no conflict of interest exists.
One investigator will normally be appointed to hear cases of bullying and harassment and two gender balanced investigators will be appointed as an investigation team to investigate complaints of sexual misconduct.
ER/SECCA will provide the complainant and respondent with the relevant details of selected investigator(s), which will include a copy their profile, their contact number, email addresses and details of when the investigator will contact them.
The University may decide that precautionary measures may be required to be put in place following the submission of a formal complaint pending the outcome of an investigation process. A precautionary measure is not a penalty or a sanction and does not indicate that it has been concluded that the person concerned has committed a breach of discipline or a criminal offence. Rather these precautionary measures may be put in place in the best interests of all parties involved including any witnesses. A list of examples of the range of potential precautionary measures is located in Appendix 2.
The screening panel has the authority to make a recommendation to the Director of Human Resources or the Registrar that precautionary action should be considered, based on the information contained in the complaint form. The Director of Human Resources or the Registrar will appoint a precautionary measures panel member, which will be a member of UMT, to conduct a precautionary measures risk analysis, ensuring that there is no conflict of interest.
Any decision made in relation to any precautionary measures will be made by a member of the precautionary measures panel and will be reasonable, proportionate and only made after due consideration of the circumstances. A member of the precautionary measures panel will make a decision based on information contained in the complaint form (except in the case where neutral suspension is being considered; a neutral suspension hearing will take place as detailed below). The panel member may request further clarification from the complainant or information from the respondent, or any other person as deemed necessary such as a risk assessment pro-forma to ensure that the activity isn’t perceived as part of an investigation. The complainant and respondent will be informed of the decision as it relates to them, in writing.
A risk assessment which will be used as a decision-making tool to decide on an appropriate precautionary measure can be found in Appendix 3.
All or some precautionary measures may potentially be kept in place following an investigation depending on the circumstances.
It is important to note that if an individual reports an issue that has not progressed to a formal complaint and is exploring informal resolution options, precautionary measures may also be considered (excluding neutral suspension). An appropriate person in the local structures independent of the situation will determine if precautionary measures are required.
Neutral Suspension Hearing
- Employees or students may be suspended where there are legitimate concerns relating to a range of issues, such as, but not limited to, the safety, health and welfare of employees/students; the potential for intimidation or interference with witnesses or evidence, the institutions reputation etc. This list is illustrative only, and cases should be assessed on their own merits.
- The process for placing any employee on neutral suspension will be in accordance with the Disciplinary Statute 28 - sections 8 and 9.
- Suspension, where deemed necessary, can occur at any stage during the investigation process.
- Any suspension shall be neutral in nature and not infer any wrongdoing on the part of the suspended employee or student nor shall it influence or infer any finding of the investigation.
- Any employee that is placed on neutral suspension will be paid their normal remuneration for the duration of the suspension.
- In cases where neutral suspension is deemed appropriate in the circumstances, the employee or student will be invited to attend a neutral suspension hearing. In advance of the hearing, they will be informed of the reasons why neutral suspension is being considered and they will be given the opportunity to respond.
- Prior to a decision being made, the employee or student should, where circumstances reasonably allow, be advised of the reasons why neutral suspension is being considered.
- Employees may be accompanied by a work colleague or a trade union official.
- Students may be accompanied in a support capacity by a student advisor/chaplain, by a member of the students’ unions or a family member.
- The employee or student will be given the opportunity, to respond to the proposed neutral suspension.
- The decision should be kept under review during the investigation and should not be unnecessarily protracted. The decision to neutrally suspend an employee or student should depend on the seriousness of the situation.
- During any period of neutral suspension, an employee or student is not be permitted to attend at the University’s premises and/or make contact with employees or students of the University regarding University business, or matters relating to their suspension, without the prior written consent of the neutral suspension decision maker and should ordinarily not be permitted, unless it is considered feasible to have access to the University information technology systems.
- Any employee or student being placed on suspension must confirm their non-UCD email address prior to access to University IT systems being denied.
From time to time, complainants may seek to withdraw their complaint after initiating a formal investigation. Withdrawal of a complaint must be made in writing to firstname.lastname@example.org. The University reserves the right to investigate a claim that has been withdrawn and/or the reason for which it has been withdrawn.