Any disciplinary decision from a first stage warning to dismissal needs to be fair and should follow a thorough investigation and due process.
The same is true when formally handling other issues such as capability issues, employee grievances, redundancy situations or in fact any of your HR procedures and processes but in this article I will concentrate on disciplinary process.
The key to documenting fair and thorough investigations and correct process are good minutes. In this article, despite the play on words in the title, minutes are not those 60 second segments of time that seem to flash by as you attempt to deal with employee issues but the record of meeting notes that form the bedrock of sound investigation reports and that evidence compliance with required minimum standards of practice in formal hearings. Considering that any disciplinary action may form part of a process that could ultimately lead to a dismissal, such processes can come under the scrutiny of the Employment Tribunal, it is therefore important that an employer can demonstrate that the employee was treated fairly, in line with disciplinary procedures and in a way that is consistent with the treatment of others in situations that are comparable.
A vital part of any investigation will be meeting with an employee at the centre of matters, and any witnesses. For such meetings I would recommend a note taker be present if at all possible, to allow the investigation chair to concentrate on the matters at hand and the note taker to record the proceedings as these notes would form the minutes of the investigation meetings. It is good preparation to map out some of the important points or questions to be covered but the investigator must remain flexible and go where the answers take them rather than slavishly follow a script, as this can lead to missed opportunities. At the close of these meetings the note taker should read through their notes with the participants present in an attempt to get agreement that they represent the meeting contents, if possible get all present to sign the notes as a true record of the meeting.
Disciplinary hearing minutes
In a formal hearing there will have been an invite letter that will have set out the matters to be discussed, it is good practice for the disciplinary chair to structure the hearing to mirror the format set out in the invite to give a good consistent set of minutes. Again it is recommended that a note taker be appointed to concentrate of taking notes as the hearing progresses. A list or questions and key points is a useful tool to ensure all matters are addressed but again the chair will need to go with the flow. A disciplinary hearing is the employee’s opportunity to put their version of events to the chair, so simply reading from a prepared script could show a level of pre-decision that could jeopardise fair process. Again at meeting close, go through the notes and attempt to get the signatures of those present.
The hand written notes should then be used to produce a typed set of meeting minutes but original notes should also be kept on file. If the participants cannot agree on the prepared minutes they should be afforded the opportunity to offer an amended version that they feel correctly reflect the meeting. It may be useful to remind those wishing to amend the minutes, that these minutes should represent what was said, not what they now wish they had said.
In both investigations and formal hearings, minutes do not need to be a verbatim, exact record of each word of the proceedings but should have enough detail to give a reader not present at the time, a good understanding of what was discussed. The minutes should be unbiased and reflect matters raised by both employer and employee (and any rep) and not just cherry pick key points that support one version of events.
To give the note taker a chance to record what is going on in enough detail to produce a good set of minutes, the chair will need to control the pace of the meeting to match the abilities of the note taker and make the participants of the meeting aware of this. A note of caution here; don’t stop an employee in mid flow of a vital piece of information to allow the note taker to catch up, let the speaker finish then allow time to catch up, perhaps asking for the notes to be read back to ensure all points have been recorded. You should afford the employee or their rep the same facilities to ensure they can check key points have been recorded.
The minutes should clearly show who was present and in what capacity and should clearly show who said what, often the people in the room are familiar with the situation under discussion and those discussing it, so minutes that make sense to them may not to a future reader. Avensure clients will be asked to provide minutes for review so we should be able to let you know if there is an issue with familiarity or jargon. A simple overview of what was discussed will not be seen as a set of minutes and is unlikely to show that the employee’s case was given equal credence before any decision was reached.
Why are minutes so important?
For us as advisors at Avensure, a set of agreed minutes are key in showing that correct and fair process’ has been followed and are usually our only opportunity to see what the employee and their rep have to say on the matters of concern, this allows us to give advice to our clients armed with full knowledge so we can look to eradicate or minimise any risks and ensure your ultimate decision is a fair one. Even if the contents of the minutes are disputed they at least show the employer’s understanding of what took place and document the information on which a decision was made. If presented at tribunal, an agreed set of minutes will be seen as a true record and again even if disputed they document the employer’s assertions of what took place. A lack of good minutes will likely reflect badly on the employer at tribunal as an employment Judge will expect the employer to keep good written records as set out in the ACAS code of practice on disciplinary handling. Tribunals are entitled to ‘draw an inference’ when an employer deviates from the proscribed good practice in managing meetings with employees, this can lead to them choosing to believe the claimant’s version of events. Therefore without minutes from the investigation and certainly from the disciplinary stage, the employer may struggle to convince a tribunal that fair process was followed this will in turn make it difficult for a tribunal to find that the disciplinary action was fair (even if the evidence of guilt is strong). This can lead to a dismissal that should be fair being found unfair and result in the tribunal making awards to the claimant.
Ultimately minutes are your accurate and reliable storyboard of what took place at key meetings with employees.
So take a few minutes to produce some good minutes, as every minute counts.