Should employees sign a Notice to Explain if they disagree?

Labor Law Discipline AWOL 6 min read , November 14, 2020

If an employee disagrees with the Notice to Explain, can they refuse to sign? What do you do if you have contradictory points of view with the accused? Can the case proceed if the employee disagrees with your assessment? We'll tackle these in today's article.

Sometimes, panic ensues when an employee is served with a "Notice to Explain" and they vehemently disagree with the contents. When the employee is asked to sign the acknowledgment portion, they get angry because they feel that they are being forced to stand down and accept the findings without a fight.

They get angry because they feel that they are being forced to stand down and accept the findings without a fight.

The management representative tasked with serving the notice is now put in the awkward position of diffusing this situation. They try to explain, "I'm just asking you to receive the paper! I'm not even asking you to respond right here! Why are you angry?"

Let's dismantle this conflict right now by explaining a legal concept.

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The Difference Between Agreeing and Receiving to a Notice

There is a world of a difference between the two concepts. The best way to differentiate is that one is active and the other is passive.

Agreement or Concurrence

When you "agree" with a document, you confirm and you concur with the contents of the document and you bind yourself to what it says.

  • Think contracts. When you sign a contract, you say yes to what it says and make promises based on what the document contains.
  • Think checks. When you sign a check, you are promising to pay the amount stated in the check.
  • Think waivers. If you participate in a risky activity and you sign a waiver, you are promising to let go of your right to sue the organizers.

In all of these transactions, you are actively doing something. You are confirming, promising or letting go of some right or obligation. There is action.

Receiving or Acknowledging

With receiving, it is a lot more passive. That's because you are not doing anything with the contents of the document. Here, you are merely saying that, "Yes, I got a copy." That's the answer for whatever scenario occurs:

  • "Do you agree with it?" - Nope, I just received a copy.
  • "Do you promise to follow the instructions?" - Nope, I just confirm that I received a copy.
  • "Do you waive your rights?" - What rights? I haven't even read it. I am just saying that I got a copy.
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Chill, baby!

Are you seeing the difference between the two? The extent of your participation in the second scenario is saying, yes, I received it. You are not acting on anything written yet. The extent of the legal effects is that we have now properly documented the receipt. We will deal with the contents later.

That's why it generally doesn't make sense to get angry or to refuse to sign if an employee is presented with a Notice to Explain. The signature at the bottom is merely an acknowledgment of receipt. Signing does not mean that agree with the contents. You are only saying that "Yes, I received a copy" but it does not extend to "Yes, I'm confirming what you're saying in this doument.

Signing does not mean that agree with the contents. You are only saying that "Yes, I received a copy."

But I plan to contest this!

What do you say to the employee who says, "I don't want to sign it because I disagree with it!" If I were the one serving the notice, there are 3 things I would calmly attempt explain to the objecting employee. Take note of these and see if you can use them to difuse the situation next time:

First, if you plan to contest this, then the best thing you could do is to receive a copy so you can reply to the allegations properly. Think about it. How do you plan to contest an accusation against you if you don't even know what the "supposed violation" was in the first place?

Second, regardless of whether you accept this or not, the employer can merely note that you refused to receive it and proceed with the investigation or disciplinary process. Just to be clear, refusing to receive this will not stop the proceedings. You only hurt your case because you will be operating without adequate information.

Third, things are antagonistic enough as it is at this point. Is there any sense adding to the conflict? During the investigation, there may be evidence that you indeed were guilty of certain violations. Showing aggression at this point may burn bridges unnecessarily should you opt to ask for consideration down the line. From a strategic perspective, why not keep your options open and avoid unnecessary conflict?

The way I analyze it, there is nothing to lose on the part of the employee when they receive a copy of the Notice. There is no strategic advantage if they refuse to sign it and so, I caution against it when I have employee clients.

The way I analyze it, there is nothing to lose on the part of the employee when they receive a copy of the Notice.
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Recommendation: Why not make it explicit?

At this point, I would like to give some tips for the employers and make this aspect of your work easier. You are lucky because we got the opportunity to discuss the difference between acknowledgment/receiving versus agreement/concurrence. But most of the employees under your watch have yet to get an opportunity and think about this the way you see it so patience is key.

Why not close the divide by having the notice explain explicitly state what I just explained in this article? At the bottom of the Notice to Explain, you can put this notice:

"Signing this form does not mean that you agree with the allegations, only that you received a copy of this Notice."

If that doesn't do the trick, then feel free to explain things the way I explained it to you in the previous section. The worst case scenario is that they don't get it and in that case, just send them a link to this article, so I can help you explain it myself.

Wrap up

So, what did we learn today?

  • We learned the difference between receiving and agreeing;
  • Why employees shouldn't get mad at the person serving a Notice;
  • Why employees have nothing to lose by receiving a Notice;
  • How to explain this to objecting employees.

In addition, if you want to learn the step by step process of service, revisit my previous article How to serve a notice to explain (face to face) and How to serve a notice to explain part 2 (remote service) where I share the nitty-gritty.

So, did you learn something new today? If you found this useful, please share with your workmates and friends. What realization did you have? Let me know in the comments!