A nursery has recently decided to discipline a member of staff. Along with the letter inviting the employee to the disciplinary hearing, should there also be a copy of information collated as part of the investigation? Can the nursery withhold witness statements?
The documents enclosed above should give sufficient detail of the basis of the case against the employee. Usually, this obligation is met by including all information gathered during the investigation, including any report and witness statements. In order to enable the employee to have a fair opportunity to challenge any evidence, the source of the information should usually be included.
Evidence should be anonymised or withheld only where there is a strong reason for doing so, e.g. where a witness is in fear of physical violence if their identity is released. In that case, the witness statement should not be automatically withheld, but a balancing exercise should take place between the need for anonymity and the employee’s need to know details of the case. Consideration should be given to whether it is possible to delete any references in the body of the statement which may lead to identification.
In the event of the employee bringing a claim in the employment tribunal or making a data subject access request under the Data Protection Act, it is likely that the witness statements would in any event need to be disclosed. Withholding statements at the stage of inviting an employee to a disciplinary hearing may also cast doubt on the fairness of the process.
We have received an anonymous complaint of bullying that allegedly occurred more than a year ago. Limited details are provided. Is there a duty to investigate?
There is no legal duty to investigate as such, but there is an implied duty on the nursery as an employer to take reasonable steps to protect staff from unacceptable behaviour such as bullying or unauthorised interference in work duties.
A cursory investigation should therefore take place based on the limited information available. But, and particularly in view of the anonymous nature of the complaint, the time that has elapsed since the (alleged incident) and the limited nature of the information available, it may be that such investigation does not identify any information to substantiate the complaint. It will not then be possible to take any action specifically in relation to the allegation made. However, the nursery may wish to reinforce its bullying and harassment policy to its workforce.
