Here are a few more of the questions – and our outline answers – following our recent webinar on Handling Workplace Investigations.
Does the notetaking at investigation meetings need to be verbatim?
No. There is no requirement for meeting notes to be a verbatim record of everything that has been said – not only can this make any meeting notes incredibly long and tedious, but often it can mean you lose the key points made amongst all the other chatter that has been captured. The meeting notes should seek to provide a comprehensive summary of what has been said, capturing the key points. You can put particularly telling choices of words or phrases in quotation marks if the exact terms of the evidence are seen as important in order to show that that was what was actually said, not your summary or paraphrasing of it.
If a meeting takes place virtually, do you recommend using the transcribe function to help with note-taking?
We would recommend caution before adopting this approach. Although such technology can make things simpler and it can potentially save you having to arrange for a separate note-taker to be present, in our experience it is still not 100% accurate. It also does still mean that you end up with reams of notes and it can be difficult to see the wood for the trees when it comes to the key points that were discussed. See our previous blog for a fuller discussion of the issues to consider when using voice recognition technology to take notes of meetings. Whether your meeting is physical or virtual, beware of the possibility that the employee may be recording it covertly, perhaps even in the face of clear instructions not to do so. As a result, it is never safe to rely on the transition from transcribed notes to a polished final product as somewhere to “refine” what you said.
If we use a third-party provider for employee relations advice, can this be considered “professional advice” and be considered privileged and/or redactable in a DSAR?
This will depend on who the third-party provider is.
Legal advice privilege only covers confidential communications/documents between a client and a lawyer (including an in-house lawyer, but not necessarily UK-qualified) that are created for the sole or dominant purpose of seeking and/or giving legal advice. It would not therefore cover advice from non-lawyer third parties, such as HR/employment consultants. This means that any communications sent to or prepared by them may potentially be disclosable at a subsequent stage unless they attract litigation privilege, which protects documents passing between a lawyer and a third party (or a client and a third party) where litigation is pending or contemplated and the document has been created for the sole or dominant purpose of the litigation.
This is why it is important for employers to be aware that if they take advice from non-lawyers in relation to their workplace investigations (or indeed any employment matters), such advice may potentially be disclosable, as may be their reasoning in seeking it.
A recent case highlighting this issue is Trentside Manor Care Limited & Ors v Raphael [2022]. R put in a flexible working request which, after discussion, was granted on a trial basis. Following a subsequent incident at work, she was suspended and charged with misconduct, resulting in her dismissal. She brought various Tribunal claims, claiming that the real reason for her dismissal was her previous request to work flexibly. She sought disclosure of communications between Trentside and its advisers from when she made her flexible working request to when she was dismissed. Trentside claimed such documents were protected by both litigation privilege and legal advice privilege. Their advisers were not a firm of solicitors, but they had a HR and Employment Law advice team headed by solicitors and all but one of the managers were legally qualified. However, the individual client advisers were not. The EAT held that the giving of advice by non-lawyers was not covered by legal advice privilege even in a pseudo-legal context. The fact the advisers were part of a team headed by a solicitor and in which all but one of the managers were qualified lawyers did not have the effect in law of extending the privilege to the advice that they gave.
The disclosure regime in relation to DSARs is different from that for litigation, but the general rules concerning privilege are the same. Accordingly, any exemption would only cover personal data to the extent it was covered by legal professional privilege, as defined above, or one of the other statutory exemptions.
For a more detailed look at workplace investigations, take a look at our recently updated Relatively Informal Guide to Workplace Investigations.
If you missed any of our previous posts on this series, they are available to read here: