Investigations - what documentation are employers obliged to share?Posted in : Seamus Says - Employment Law Discussion on 18 April 2018
Q. What documentation are you obliged to share with the individual, who's the subject of those processes? And it's different for discipline and grievance, isn't it, Seamus?
Seamus: Yes. I mean certainly at an investigation level there is no obligation to provide the employee with any sort of detailed paperwork or even any paperwork at that point. You're entitled to go to the employee and say, "I want to have a meeting with you. We’re going to have an investigation in terms of these allegations that have arisen." That's very different to when you get to the disciplinary, point again that the employee should be very clear about what the disciplinary allegations are, and the employee should be provided with the bundle of evidence in advance of the disciplinary hearing, sort of providing every document that has been used during the investigation, because case law again is showing us that if you get to your disciplinary outcome and you're relying on documentation that you haven't provided to the employee in advance, that your outcome will be unfair. The employee has to have a fair crack at meeting the allegations and responding to them.
Scott: And that means you provide them with everything… the evidence that points to guilt and the evidence that points away from guilt in the disciplinary issue. But that's different in a grievance. So, in a grievance, what do you provide to the person?
Seamus: Well, your grievance will often start simply with your letter of complaint or your grievance letter from your aggrieved employee. It's not always appropriate to simply provide a copy of that letter across to the party that has been accused. What you might want to do in those circumstances is maybe paraphrase and lift out of the letter what the allegations are, because remember this the grievance letter might settle what it is that the person is looking for in resolution. And it might be is that if you're in HR, that you're looking at it and saying, "I really feel that this matter could be resolved and we could mediate and we could get these two back on track. But if I provide the other employee with the copy of the letter, it's never going to happen."
So you have to be clear about what the allegations are, but there might be elements that you're not going to go into with that employee in order to make sure that you can arrive at a sensible process and maybe get the employees back on track again.
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- Can we still dismiss an employee for an act of gross misconduct which took place several months ago?
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