Must an employer disclose notes and witness statements produced during a grievance or disciplinary procedure if an employee requests them?
Employees have the right under the General Data Protection Regulation (2016/679 EU) to request access to information about them that is held on file, whether manually or on computer. For example, an employee who has raised a grievance and is not satisfied with the outcome may request copies of the written evidence on which the decision was made, including statements obtained from witnesses; or an employee about whom a grievance has been made may request evidence relating to the complaint. The employer can refuse to disclose the document in question if its disclosure would also reveal information about a third party who can be identified from the information, unless the third party has consented to the disclosure or it is reasonable in all the circumstances to comply with the request without their consent.
The employer should not automatically refuse to disclose a document if a third party, for example a colleague who has given a witness statement, does not consent to it being released. The employer should consider taking steps to anonymise the document before disclosing it. This might involve:
- blanking out the witness's name and any other information from which they could be identified;
- editing the statement to conceal the identity of the witness; or
- where there are several witness statements from different employees, preparing a summary of the information contained in the statements.
Ultimately, the employer should take a reasoned decision about whether or not it would be reasonable in the circumstances to disclose a witness statement or other document. This will involve balancing the witness's right to privacy against the employee's right to know what information is held about them, and its source.
Where a disciplinary investigation results in the decision to proceed to a disciplinary hearing, the employer should provide the employee with copies of any witness statements and other written evidence that will be referred to in the hearing. The employee has the right to know the case against them and to be able to challenge it, so evidence should be anonymised or withheld only where there is a strong reason for doing so.
The Acas code of practice on disciplinary and grievance procedures, which is taken into account in relevant tribunal proceedings, states that it would normally be appropriate to provide the employee with copies of any written evidence with the notification of the disciplinary hearing. The non-statutory guide that accompanies the code states that the employer should give copies of any meeting records to the employee, but states that protecting a witness is an example of a circumstance in which withholding information may be appropriate.