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Right to access to evidence

Discussion in 'Workplace dilemmas' started by delmamerchant, Feb 10, 2019.

  1. delmamerchant

    delmamerchant Established commenter

    I am supporting a colleague at an investigation meeting, where allegations have been made against them for mis conduct. We have asked to see evidence that the school have collected but they have said that we are not entitled to see it at this stage. I feel as if we are going in blind - as the school have carried out their investigation by speaking to staff and students concerned and having collected the evidence they want to speak to me. Is there any point in law that says we are entitled to see the evidence that they have collected before the interview?
  2. Vince_Ulam

    Vince_Ulam Star commenter

    Two options to avoid a stitch-up, assuming the absence of misconduct:
    1. Do not go to the meeting until the evidence is provided for your review.
    2. Go to the meeting, get the evidence and adjourn until you have reviewed it.
    bevdex, Curae, agathamorse and 4 others like this.
  3. NQT08

    NQT08 Occasional commenter

    You only get to see it if it goes to a disciplinary hearing. They are right - for now.
  4. caterpillartobutterfly

    caterpillartobutterfly Star commenter

    You need to ensure your colleague speaks to their union as soon as possible, as they will need their support should this go to a disciplinary hearing.

    For now, your school are correct that you don't see the evidence part way through the investigation. Once the head has concluded their investigation, they decide whether or not to start disciplinary proceedings. If they decide to proceed then you are given all of the information that will be submitted to the panel with enough time to review and prepare an answer.

    The investigation is purely an opportunity for your colleague to give their side of the story and they have no right to representation at the meeting, which could be why SLT want to speak to you.
  5. Vince_Ulam

    Vince_Ulam Star commenter

    Not so. Even in a TRA proceeding the accused has a right to review the evidence being considered in an investigation of their conduct, or otherwise be advised what is being considered & how, that they can submit their own evidence.
  6. nomad

    nomad Star commenter

  7. grumpydogwoman

    grumpydogwoman Star commenter

    The section from Acas about meeting the employee says that they should disclose the evidence to you along with the letter inviting you to the meeting.
  8. ridleyrumpus

    ridleyrumpus Star commenter

    It says this for the formal stage, though how you can do a proper investigation without involving the person being investigated is beyond me.
  9. grumpydogwoman

    grumpydogwoman Star commenter

    Going to have to disagree on that.
    The meeting comes after the investigation. It precedes taking action. No action can be taken until the employee has had her/his say. And that is the step immediately after the evidence-gathering.
    powerpack67 likes this.
  10. Rott Weiler

    Rott Weiler Star commenter Forum guide

    When I work as an investigating officer I would not give copies of the evidence I had collected at this time. Believe it or not people sometimes change their story if they see the evidence first.There is certainly no law that says the evidence collected must be provided prior to the investigation meeting. If, after investigation, it goes to a formal hearing all parties get my report and all the evidence at least a week before the hearing.

    Wether someone is entitled to be accompanied at an investigation meeting depends solely on the school's discipline policy. Many give that right. Others don't. There is no statutory right. That exists only for the formal disciplinary hearing.
    Last edited: Feb 10, 2019
  11. Vince_Ulam

    Vince_Ulam Star commenter

    Presumably your investigation would not be closed until the accused teacher had a chance to review the evidence against them and submit their own in response.
  12. banjouk

    banjouk Occasional commenter

    You could submit a SAR - any paper work with your name on it would need to be made available to you.
    PGCE_tutor likes this.
  13. bajan

    bajan Occasional commenter

    This is why you need to inform your union at the outset. Have you read the school's disciplinary policy?
  14. hhhh

    hhhh Lead commenter

    I'd thought under GDPR you had the right to ask for any data company held on you-and under any democratic system it seems usual for the prosecution to have to give the defendant any evidence held on him BUT I am not a lawyer and would always advise speaking to the union/an actual lawyer.What seems 'right' to anyone on here might not be what happens in our schools/legal system these days.
  15. delmamerchant

    delmamerchant Established commenter

    yes you are right. it just seems unfair that we go to a meeting not knowing what or who made the allegation.
  16. Vince_Ulam

    Vince_Ulam Star commenter

  17. install

    install Star commenter

    1 See Union / or Employment legal rep

    2 Request School Policy on Complaints Procedures and Misconduct. Also request School Policy on Bullying / Harassment / Equality

    3 Check your role

    4 Get your Colleague to request all information the school has on them since they started

    5 Has there been a formal letter stating the claims? Has your Colleague and others been warned not to jeopardise the investigation by speaking to others about it?

    6 Have they been suspended? If not - that may give some insight into the nature of the accusation.

    7 Ask your Colleague if they need to see GP in case this is causing undue stress

    8 Has your Colleague had any other warnings so far ?​
    Last edited: Feb 11, 2019
    Curae and JohnJCazorla like this.
  18. Rott Weiler

    Rott Weiler Star commenter Forum guide

    No, but I would interview the 'accused' for their version of events before they saw all the witness statements. They would though be told what the allegations against them were before I interviewed them. I don't do 'ambush interviews', and neither should any employer.
    bajan and ScienceGuy like this.
  19. grumpydogwoman

    grumpydogwoman Star commenter

    I have re-read.

    At the investigation stage it wouldn't be appropriate to reveal to any party much of what had been disclosed by another. That could unduly influence how responses were framed.

    This is the investigation stage. It's a finding-out mission. It is not apportioning blame or commencing a disciplinary procedure. The whole thing could be taken no further. It could be dropped after the investigation is concluded.

    I would expect the meeting, if conducted correctly, to be an opportunity for your colleague to talk about the events of a certain day or period. The questioning might be: what do you remember about student X's work and behaviour last summer, can you go into a bit more detail, please.

    Let's say there were allegations of something occurring during a detention. The colleague would be asked open questions about any detentions. What do you recall about detentions given last summer? What would you say about the frequency and the numbers of students?

    It is an investigation. Not an interrogation. It's not a rebuttal. So I'd treat it as such. Fact-finding. So just sit and make notes. Be prepared to intervene if you feel the questioning becomes hostile. But expect neutrality. Your colleague has nothing to hide. Easy to say but go in with a spirit of optimism. Your colleague needn't over-elaborate. It's not a matter of establishing innocence. Just fact-finding.
  20. Vince_Ulam

    Vince_Ulam Star commenter

    Prejudicial witness statements only?

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