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  • An employer, in order to test the reaction of an employee under investigation, will often reasonably decide to not furnish documents to an employee before an Investigation Meeting ( we are not talking here of the subsequent Disciplinary Hearing where the employer would be expected to make all documents available to the employee in advance of that meeting). The Decision of the Tribunal in Davide Colli –v- Ryanair Limited UD 193/2010 published recently on the Republic of Ireland Employment Appeals Tribunal website determined that the employee should be shown such documents in advance.

    While the Tribunal concluded that the behaviour of the claimant constituted gross misconduct and hence the Claimant`s Unfair Dismissal claim failed, the Tribunal specifically addressed the procedure adopted by the respondent in the course of the investigation hearing and wanted it to be of “guidance” to the parties involved. The Tribunal noted:
    • The investigation procedure was not objected to by the Claimant.
    • The Respondent invited the Claimant to an investigation meeting to discuss three reports but these were only produced to him for the first time at the meeting.

    It was the unanimous view of the Employment Appeals Tribunal that the proper procedure should have consisted of the following steps:
    1. The Claimant should have been furnished with a copy of the reports prior to the investigation meeting.
    2. In the event of failing to furnish the reports prior to the investigation meeting, the reports should have been furnished at the investigation meeting together with an enquiry as to whether the Claimant required more time to re-consider.

    The writer suggests that it will be a matter for employers to decide in each particular case whether they should produce documents in advance of an Investigation meeting. While the Tribunal in this case stated that documents should be produced, often the employer needs to test the reaction of an employee in the first instance. While this could be deemed unfair there are cases, for example suspected theft, where the employer may have no alternative but to approach the Investigation meeting in this manner. It is worth bearing in mind that in the Colli Decision the Tribunal found the Dismissal to be fair, even though it was not happy with the procedures adopted by the employer.

    It will be a matter for the employer to weigh the risks. Legal advice on the appropriate route to be adopted should be taken in these circumstances.