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“All the right notes, but not necessarily in the right order” – previewing your investigatory record-keeping requirements (UK)

The integrity of your investigation will depend heavily upon your being able to show that the factual conclusions you reached were reasonable having regard to the evidence you heard.  Decent notes of that evidence will be fundamental to that.  They will show what the witnesses said (and sometimes as importantly, did not say), and will capture anything you may note as potentially relevant later.  Decent notes do not have to be verbatim, but if a particular word or choice of phrase strikes you as telling, you should always highlight it in quotation marks to show that that is not your summary or assumption of the point being made, but the actual words used.  As a common example, a sharp Employment Tribunal advocate can have a great deal of fun with the distinction between “I did not do that” on the one hand and “I don’t recall doing that” or “I wouldn’t have done that” on the other.  One speaks of direct knowledge while the others put some distance between the witness and the denial.  “I don’t recall” strictly means that it could have happened but the employee simply doesn’t remember, while “I wouldn’t” implies that the witness is answering the question based on his normal picture of himself and not on the specific events in question. 

Should you record your investigatory interviews?  Up to you, but you should always keep in mind that the witness may be doing it anyway, whether or not with your knowledge or consent.  If you do record the meeting then both the recording and any transcript you make from it will be disclosable if the matter goes to litigation.  That makes it doubly important that the investigator is very circumspect around discussion of matters concerning one witness with another or arguably premature comments on the merits of the matter being investigated.  There is no surer basis for a grievance appeal than the discovery that the investigator went into the matter with mind already made up.  If the employee records the meeting covertly or indeed in defiance of strict instructions not to do so, that recording will also still be admissible in evidence.  If you are willing for the employee to record it, then agree to this but on the express condition that you are supplied with a copy as soon as possible afterwards.

Acas guidance suggests that witnesses in investigations should be sent copies of the notes subsequently.  As a rule of thumb, this can generally be limited to the key protagonists only, but in any event Acas does not suggest any express attempt to agree the notes, as this inevitably invites an attempted retrospective revision of the record to say what the employee now wishes he had said, rather than what he actually did.  If criticisms of your notes are received, you should of course consider them and pick them up with any note-taker you had present.  However, ultimately you know what you heard, and if you do not agree with the criticisms, you do not have to accept them nor do they render your notes or the process invalid.

That said, keep in mind the right of any witness to provide you with additional or corrected information after the investigation meeting and have you take it into proper account.  The distinction is important because it may go to the credibility of the witness on the one hand or your own as investigator on the other.  In an employee’s response on receipt of your investigation meeting notes, this is the difference between “I didn’t say X, I said Y” (a direct attack on the accuracy of your notes) and “I did say X but on reflection I meant Y” or “I did say X but I should also have added Z”.  You can form your own view of whether their not mentioning Y or Z at the meeting signifies anything for the credibility of those points, but you shouldn’t reject those additional matters out of hand just because they come up later.  Any written response or supplementary comment from the employee should be retained as part of the investigation record, ideally with a brief note of why you did or did not accept them.

Last, to keep your notes in the right order, be clear around who is taking them and who is doing the talking.  For confidentiality reasons it is common for someone from HR to take the notes while a manager is formally doing the investigation.  Nothing at all wrong with that but it is worth stressing to the witness at the outset that the HR rep will not be part of your decision-making process.  If it is you as investigator who has also committed to make the notes as the meeting goes along, then two top tips: first, speaking, concentrating and writing all at the same time is multi-tasking of the worst sort, like knitting on a unicycle.  Unless you take it really slowly, seek regular clarification and pauses while you scribble away in silence, something is bound to go wrong.  Second, don’t forget mid-meeting that you are also the note-taker – it is very easy to slip into ordinary meeting habits and then suddenly find that you have spent what could have been a very constructive hour talking with your witness if only you had remembered to write any of it down.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 178
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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