Guidance on disclosing notes made during grievance hearings
Burnetts' HR Consultant, Eleanor Morland, explains the rules on disclosing notes from grievance and disciplinary hearings when a request is made.
Must an employer disclose notes and witness statements produced during a grievance or disciplinary procedure if an employee requests them?
The Data Protection Act 1998 provides employees with the right to request to access any information about them that is held (whether held on paper or electronicallly) on file. This would include the right to ask for written information collated during the process of investigating a disciplinary or grievance matter, such as witness statements or evidence relating to any complaint made against them and any notes from meetings.
Whilst the employee has the right to request this information the employer might need to carefully consider disclosure of a document if the documents includes information from or about a third party who has not consented to its disclosure. Whilst the employer could potentially refuse to disclose a document which refers to a third party who has not given their consent, the employer should not automatically refuse to do so. An example might be during a grievance investigation an employee has provided a statement but does not give consent for this information to be released. In this scenario an employer should consider if they can anonymise the statement before disclosing it by removing the witness’s name and other information that could lead to them being easily identified.
In such a case it would be for the employer to make a decision about whether or not it would be reasonable in the circumstances to make the disclosure. The decision will involve the need to balance the employee’s right to know the information held about them and its source against the witness’ right to privacy.
In situations where an employee is being called to a disciplinary hearing as a result of a disciplinary investigation, the employee has the right to know the case against them to allow them to prepare and challenge it. The employer should provide the employee with documents gathered as part of the investigation including copies of witness statements and other written evidence that will be referred to in a hearing. In these circumstances evidence should only be anonymised or withheld where there is a strong reason for doing so, such as a real fear of harm. Witnesses need to be made aware that their statements will be disclosed.
The Acas Code of Practice on Disciplinary and Grievance procedures states that it would normally be appropriate to provide the employee with copies of any written evidence, such as witness statements etc, with the letter notifying them of the disciplinary hearing. The non-statutory guide that accompanies the code also states that the employer should give copies of any meeting records to the employee and also states that protecting a witness is an example of a circumstance in which withholding information may be appropriate.
If you have any questions on disciplinary/grievance hearings or data protection, please contact Eleanor Morland by emailing firstname.lastname@example.org.
About the author
Eleanor is a HR Consultant at Burnetts.