To Disclose or Not Disclose: That Is the Workplace Question

Employers don’t have to show their entire hand in a workplace investigation, but they do have to play fair. Procedural fairness requires that employees understand the case against them and have a real opportunity to respond. When decisions rely on investigation findings, some level of transparency may be unavoidable.

The challenge lies in striking the right balance between fairness and over-disclosure.

Procedural Fairness Comes First

In workplace investigations, employers are not generally obligated to provide the full investigation report to the employee involved. However, this does not mean employers have unfettered discretion to withhold the investigation report.

Employees are owed a duty of procedural fairness, which typically includes:

• Understanding the allegations against them
• Having a meaningful opportunity to respond
• Being informed of the basis for any disciplinary decision

What fairness requires will vary depending on the circumstances, including the seriousness of the allegations, the consequences for the employee, and how the employer uses the investigation findings.

When Disclosure Becomes Necessary

Where an employer relies on an investigation report to justify discipline or termination, disclosure may become necessary. The rationale is simple: an employer cannot rely on a document to support its decision while shielding it from scrutiny.

In these situations, decision-makers often conclude that:

• The report is clearly relevant to understanding the employer’s reasoning
• Any privilege over the report may be waived if the report is relied upon
• Disclosure is necessary to allow the employee (or their representative) to challenge the decision meaningfully

How Much Disclosure Is Enough?

Even where disclosure is required, the scope of production remains a distinct issue.

Decisions on this issue have distinguished between:

• The investigation report, and
• The investigator’s underlying file (e.g., interview notes, witness statements, internal communications)

The dividing line is whether the requested materials are “arguably relevant” to the dispute.

Narrow Disclosure (Report Only)

Where the dispute focuses on:

• The employer’s reasoning, or
• Whether the decision was influenced by improper considerations

decision-makers may limit disclosure to the report itself and deny access to the broader investigation file, especially if the request appears speculative or overly broad.

Broader Disclosure (Including Underlying Materials)

Expanded disclosure may be ordered where:

• The dispute is factually detailed and well-particularized
• The credibility of witnesses or completeness of the investigation is directly in issue
• The underlying materials (e.g., interview notes) have a clear logical connection to the claims

In these cases, decision-makers may require production of:

• Witness statements
• Interview notes
• Documents relied upon by the investigator

Importantly, even in cases supporting broader production, adjudicators continue to reject vague requests for “all documents” or “all correspondence,” reinforcing that disclosure must remain focused and proportionate.

Avoiding the “Fishing Expedition”

A consistent theme across decisions is the rejection of unfocused or overly broad requests. Disclosure must be grounded in a clear theory of relevance. Requests that lack a direct connection to the issues in dispute risk being dismissed as fishing expeditions.

This principle applies equally to employers responding to requests and to those advancing them: precision and justification matter.

Employers, and employees challenging decisions, should be aware that:

• Requests must be grounded in the issues in dispute
• There must be a clear rationale connecting the requested material to those issues
• Adjudicators will actively guard against disclosure requests that lack focus or appear exploratory

Practical Guidance for Employers

1. Be Deliberate About Reliance.
If you intend to rely on an investigation report in making a disciplinary decision, assume that you may need to disclose it.

2. Ensure Fairness Without Over-Disclosing.
Procedural fairness does not always require full transparency of every document. In some cases, a clear summary of findings may suffice—particularly where the report is not central to the dispute.

3. Align Disclosure With the Dispute.
Consider what is actually being challenged:

• If the issue is misconduct, the report may be central
• If the issue is penalty or proportionality, the report may be less critical

4. Document Your Reasoning
Clear, well-documented decision-making reduces reliance on the report itself and strengthens defensibility.

5. Anticipate Relevance Arguments.
Before refusing disclosure, assess whether the report, or underlying materials, could reasonably be seen as arguably relevant.

Strategic Considerations

Not every dispute turns on the investigation itself. In some cases, the central issue is whether the employer’s response, such as termination, was proportionate.

In those situations:

• Focusing too heavily on the investigation process may be unnecessary
• Broad disclosure requests may weaken credibility if they appear unfocused
• The stronger strategy may be to assess whether the outcome aligns with workplace policies, past practice, and principles of progressive discipline.

Workplace investigations are not simply about reaching the right outcome, they are about getting there in a way that is demonstrably fair. While employers are not required to disclose every document generated in an investigation, they must be prepared to share enough information to support the integrity of their decision-making process.

The emerging guidance is clear: disclosure is not an all-or-nothing exercise. It is a calibrated assessment grounded in relevance, fairness, and the nature of the dispute. Employers who approach disclosure thoughtfully, by aligning it with the issues at hand and avoiding both overreach and unnecessary secrecy, will be best positioned to defend their decisions and maintain trust in the process.

A thoughtful approach to procedural fairness and disclosure not only reduces legal risk but also strengthens the credibility of the investigation process. The key is not maximum disclosure, but appropriate, defensible disclosure grounded in relevance.

Need Guidance on Procedural Fairness in an Investigation?

Procedural fairness can become complicated quickly, particularly when questions arise about what should be disclosed, when disclosure is required and how much information is enough. Field Law’s Workplace Investigations Team helps employers navigate these decisions at every stage of the investigation process.

Whether you’re planning an investigation, responding to a disclosure request or assessing the fairness of an existing process, our team can help you determine a practical approach that reflects the circumstances and reduces risk.

Contact Tracy Zimmer or any member of Field Law’s Workplace Investigations Team to discuss your investigation or disclosure questions.