Note-takers

It is very important to have an accurate and full record of the meeting. This will be the main source of information as to what was said for any appeal panel or employment tribunal.

The member and rep should agree a system for taking a note of key points, which could include issues like any admissions, any suggestion of bias or any indication that the panel have already made their mind up, any reliance on irrelevant past incidents or activities (such as acting as a union member or rep), any mention of discrimination or victimisation, or any inappropriate or bullying comments.

It is not unusual for disputes to arise over agreeing the minutes, which are usually prepared by a representative from Human Resources (HR). It is a good idea to arrange for a photocopy of the manuscript meeting note to be handed over as soon as the meeting is finished, with the pages numbered. After the meeting, a typed version should be agreed as quickly as possible.

It is important not to sign off on minutes that contain significant mistakes.

For any future tribunal claim, bear in mind that any internal notes and emails passing between HR and the managers involved in a formal dismissal (or grievance) decision leading up to and during the decision-making process are not normally protected by legal privilege. This means they will not be confidential in the tribunal claim and a member will be able to ask for copies if they are likely to contain relevant information. You may also be able to argue that they are “personal data”, and the proper subject of a Data Subject Access Request (see Chapter 6: Making a Data Subject Access Request).

It is also worth remembering that legal professional privilege does not cover communications between an employer and external employment consultants (as opposed to firms of solicitors) (New Victoria Hospital v Ryan [1993] IRLR 202, Walter Lilly & Co Limited v Mackay [2012] EWHC 649). This means that if the employer is taking advice from consultants about the disciplinary process and there is good reason to believe it is relevant to the fairness or otherwise of the dismissal, the member may later be able to ask a tribunal to order that copies of these documents are handed over.