You will recall many articles on the blog highlighting the importance of fair procedures, be it in cases of redundancy or unfair dismissal, and where the lack of such procedures results in the same outcome for an employer; a decision in favour of the employee.

A fundamental aspect for Employers protecting themselves from any claims is to ensure all issues are dealt with in a fair and transparent manner, however an employer also needs to be able to prove they did everything correctly and by the book. This is where a paper trail becomes most important for an employer. 

When a Tribunal will look at any claim they will ask for submissions, which will include all relevant paperwork relating tot he case, and this is where a paper trail can be a distinct advantage to an employer in proving a decision was not unfair. Items like minutes of meetings, copies of policies and contracts, records of action plans or targets, and details of any warnings or sanctions should be available for a third-party to review if making a decision on the fairness or otherwise of a decision such as a dismissal.

It is important for employers to remember the burden of proof in most cases is on them, to prove a decision was not unfair (unlike common law where a person is innocent until proven guilty). An employer is going into these meetings on the backfoot, and so it is important to have the paper work to back up their decision present.

EAT Decision

A recent decision by the EAT (UD 415/2012) demonstrates this principle with the Tribunal specifically noting the instances where they were dissatisfied with the records the employer had failed to retain or document in the first place. The case itself is somewhat different as the employee in this case was alleging they were constructively dismissed (and so the burden of proof is on them to prove they had no choice but to resign) and for all intents and purposes the employer did not help themselves with their action over the course of the issue. However the principles still remain the same and when addressing any issues with staff members or setting any targets for future performance, accurate documentation should be maintained as a backup and record of what has been agreed.

In this case the employee was on sick leave and had made allegations of bullying against their Manager, which the employer was to investigate. The Tribunal criticised the employers handling of this and the manner in which they had carried out their investigation, but the Tribunal specifically highlighted the following areas they were unhappy with when making their determination.

• "the absence of minutes of the various meetings;  
• the lack of original signed statements of other employees interviewed as part of the investigation; 
• failure to furnish a letter to the claimant that the formal approach to the investigation of bullying would take place; 
• notification to the claimant of meetings by text; 
• the lack of notes of the appraisal meeting between CM and the claimant at which the claimant alleged that AP was bullying her. 
• The investigation report dated the 17 January 2012 was sent to the claimant accompanied by a compliment slip. It is extremely surprising that a report on such an important matter would not be accompanied by a letter. Such a letter would have set out the options (if any) available to the claimant. It would also have brought clarity to what exactly KR offered to the claimant and /or her representatives in relation to returning to work at the site in question or another site. The Tribunal is not satisfied with the evidence given by KR in this respect. The Tribunal does not accept that the respondent could arrange alternative work with an independent retailer as being a viable option."

Impact On Employers

You can see from the above the lack of a paper trail from the employer was a clear disadvantage and hampered them in the defence of their position resulting in an award of €14,000 being made to the employee. It is vital for clear and accurate records to be kept by employers and ensure minutes are detailed and signed by the employee to ensure there can be little dispute over the contents.

The fact that the employee did not invoke any grievance procedure prior to resigning may have reduced the award but there is little doubt there are very few employers who can afford not to keep accurate records, especially when it is something that provides such clarity and transparency to any situation or staffing issue.