Tughans LLP on employment law and difficult workplace scenarios.

For March 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“We have just carried out a disciplinary hearing with an employee. They have received the meeting minutes and have made substantial changes, which make it seem like the manager was very aggressive and one-sided – which we don’t agree with. We are almost certain that they will bring an unfair dismissal claim if they don’t like the outcome. How do I handle it?”

The meeting minutes can become an unnecessary battleground when both parties disagree on what was said. The most important point to keep in mind is what the minutes are actually for. They are meant to be an accurate record of what was said at the meeting, which can then be used by the decision-makers in the disciplinary process. In the worst-case scenario, they will form an important part of your discoverable documentation in an unfair dismissal claim.

Employees will sometimes argue that they said something at the meeting that wasn’t fully considered, or that the conduct towards them in the meeting was improper in some way.

You have already taken the safest step in sending the minutes to the employee to review and agree. In an ideal world, they would have accepted that the minutes were accurate, dramatically reducing the scope to argue differently later on.

In these circumstances, there are several issues to consider. Firstly, you should identify the precise types of changes the employee has made. If they have changed particular words used, removed, or added anything, you should check their changes with the other attendees, particularly with the notetaker. If their changes are more accurate, you can accept them.

If they have changed the minutes to reflect what they wanted to say but didn’t at the meeting, you should explain to the employee that you can’t accept the changes, as the minutes should be an accurate record of the meeting.

If they have added new or additional details about their position that weren’t discussed, you should explain to the employee that these can’t be included in the minutes, but you will pass them on to the decision maker for consideration alongside any previous information.

If the employee insists that their version of what was said is correct, and that yours is inaccurate, the best approach may be to inform the employee that you will keep and use both versions. This reduces the scope for the employee to argue that you disregarded their suggested changes and that any eventual disciplinary outcome was rendered unfair as a result. More practically, it should hopefully avoid a prolonged argument about what should be included in an agreed version.

Some employees will covertly record disciplinary hearings and contest the content of the minutes, usually without telling you what they’ve done. This can be particularly problematic if they argue that the notetaker has recorded certain words, or omitted others, in a deliberate attempt to influence the outcome. They may argue that these disparities with the minutes reflect dishonesty on the part of the notetaker or others involved in the disciplinary process. If they bring an unfair dismissal claim, they should disclose the recording during discovery, and while judges do not look kindly on covert recordings, they can be admissible in evidence. If you suspect that the employee has made a covert recording, you should proceed carefully, which can make keeping and using both versions of the minutes the safest option.

Occasionally, employees will demand that you share the actual handwritten or draft minutes taken by the notetaker so that they can compare them with the typed minutes you have sent to them. They do not have any specific entitlement to these, but you should consider whether to provide them, particularly if the differences are minimal. This would help show you have taken a reasonable approach by accommodating the employee and engaging with their concerns. Employees can, in any event, seek disclosure of these handwritten or draft versions by submitting a subject access request. Strictly speaking, they are only entitled to obtain their personal data, not copies of documents that contain their personal data, but supplying the actual documents (with any necessary redactions) is usually easiest, and they would be discoverable in any later unfair dismissal claim.

Overall, you should give this request careful consideration, within the overarching obligation to conduct the disciplinary process in a fair and reasonable manner, within the implied duty of trust and confidence. However, you should keep in mind that the meeting minutes have a specific purpose, which should not be abused, and act accordingly.

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