After holding a disciplinary meeting, the minutes were sent to the employee. The employee came back with significant changes to the minutes, with which we do not agree. How do we handle this?

We regularly receive queries around meeting minutes and the legal obligations of the employer to accept changes to minutes proposed by the employee.

The starting point for a query like this is always the policy document (or the contract of employment) under which the process has been commenced. Here, the query relates to a disciplinary process and so it is likely that the employer is operating pursuant to their internal disciplinary procedure. That will be the starting point here – what does the procedure set out about meeting minutes and how they will be addressed? The procedure may be entirely silent on the issue, or it may state that the meeting minutes will be sent to the employee for their agreement, or alternatively it may state that the meeting minutes will be sent to the employee as a record only (and the procedure may be silent on what happens if the employee wishes to make changes to the document). Review of the relevant policy document and/or the contract of employment will therefore be the first piece in the jigsaw for the employer in considering their obligations in addressing the employee’s concerns around the meeting minutes.

From there, we turn to the general legal principles governing minutes of disciplinary meetings.

In that regard, in any internal HR process, and particularly a disciplinary process, the employer must be cognisant of their obligation to follow the general principles of natural justice and fair procedure.

There is a clear guide to ensure fair procedures in any disciplinary process which is laid out under section 10 of the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (“the Code of Practice”) as follows:

1. that details of the allegations or complaints be put to the employee concerned;
2. that the employee concerned be given the opportunity to respond fully to any such allegations or complaints;
3. that the employee concerned is given the opportunity to avail of representation;
4. that the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints themselves, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

Meeting minutes at each stage of any process are an important element of fair procedures and natural justice. The purpose of minutes is to provide an accurate account of each meeting. Minutes also provide the opportunity for the employer to create a record of compliance with their legal obligations. In the event of any claim referred by the employee to the Workplace Relations Commission or a Court, the minutes will form part of the evidence in the defence of the claim.

In the WRC case, An Employee v A Garage ADJ-00037740, the importance of recording meetings with detailed notes to demonstrate to the Adjudicator or Judge that fair procedures have been followed was highlighted. The Complainant had worked for the Respondent for over 50 years until he was called into a meeting, accused of stealing and fired without notice. It was not in dispute that the meeting lasted no more than 3 minutes and no written record existed. The employer stated they presented CCTV footage to the employee in the meeting however without a written record the Adjudicator found it difficult to believe this considering the meeting was so short. The Adjudicator quoted the Code of Practice and the basic rules of fairness and natural justice and, due to the lack of recorded notes/meeting minutes, he concluded that the employer did not follow the general principles of natural justice and fair procedure. During the hearing, the employer attempted to rely on two previous warnings that were given to the employee, however no written record existed of any disciplinary meetings or outcomes and the Adjudicator could not agree with the employer without a written record as evidence.

The note taker’s role should not be downplayed. The best practice would be to ensure the note taker is a separate impartial person to the person conducting the disciplinary meeting to allow both to focus on their respective roles. Notes should capture the date and place of the meeting, all parties present, an accurate record of the meeting, capturing key points of any discussion, note any issues or disagreements that happened during the meeting such as the interviewees refusal to answer a question raised, and the start and end time of the meeting. The notes do not need to be word for word of what was said at the meeting but should be as close as possible to a fully accurate record of the meeting exchange.

Whether the meeting records are then sent to the employee in the first place, and the purpose of doing so, is likely to be addressed in the policy document or contract of employment, as referred to earlier.

When the employee reverts with changes to the meeting minutes, with which the employer does not agree, then the first consideration is why the employer does not agree. If it is the case that the employee has added information to the minutes, which information was not put forward at the meeting, then the employer should revert to the employee and note the desired changes to the minutes but also outline that such changes are not appropriate to the minutes as the information was not in fact discussed at the meeting and the minutes are intended only to reflect what occurred at the meeting and nothing more. However, the employer could also note the additional information now being proffered and confirm that it will be taken into account in the decision-making process – provided that is not contrary to whatever the policy document and/or contract of employment provides.

The case of Brickley v Extern Ireland Limited (UD1348/2008) held that the failure of an employer to allow an employee to correct/comment on the minutes of a meeting can reduce the probative value of the document. Therefore, it is best practice to provide the employee with the minutes of the meeting as soon as possible to allow the employee to review the minutes. However, unless provided for in the policy document and/or contract of employment, when sharing the minutes of the meeting with the employee, it is not advisable to ask the employee to confirm or “agree” with the content of the minutes. The employer’s position should be that the minutes are an accurate record of each meeting that has already taken place and the minutes are the best evidence available of that meeting. Providing the minutes to the employee should not be seen as an opportunity for that meeting to be revisited or the record changed. Furthermore, this is not an opportunity for the employee to attempt to retrospectively change or supplement responses with additional comments that were not brought up at the original meeting, although these can be addressed as outlined in the previous paragraph.

Where the employee maintains their stance that they want the minutes changed to reflect the employee’s proposed changes, and the employer does not agree that the changes are accurate, then perhaps the simplest way to proceed is for the employer  to confirm to the employee that they will not amend their minutes of the meeting but that they will instead attach the employee’s proposed changes to the minutes of the meeting as a record of the employee’s comments. This way the minutes are left unchanged, and the employee’s concerns can be read alongside the minutes.

Sometimes, employees will covertly record disciplinary meetings, particularly when held remotely where the recording device is out of sight, to use the recording to undermine the written record of the meeting. The laws around covert recordings are complex but putting aside individuals’ rights to privacy under the Irish Constitution and the European Convention on Human Rights, which are not absolute, and a potential breach of Data Protection/GDPR, employers would be wise to address this issue in the relevant policy document and/or the contract of employment. With this in place, if an employee has been found to have made a recording of any interaction without consent, this action may be a breach of the terms and conditions of employment and give rise to a separate disciplinary process.

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