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Advice please - Disciplinary notes
Danielpyne
Posts: 14 Forumite
Quickly to the point. Back in January I was dismissed from my job after three years. I made a thread about the situation back then, I was accused of making negative comments about another member of staff.
There was a sole witness making the allegation against me. Six other people were present during the alleged comments, each person was interviewed and all signed statements stating that they did not hear any such comment. Despite this, I was dismissed.
During the disciplinary meeting, only myself and one other person was present. I recorded the meeting using two separate voice recorders. I did not seek permission for this, neither was I told not to record the meeting.
On my appeal I requested the minutes from my disciplinary meeting. This request was ignored. My appeal failed. Tribunal stage then started after employer refused ACAS discussions.
I made another two attempts to gain access to those minutes, I was ignored both times. Today, seven months after first requesting the minutes, former employer stated that no minutes were taken. Instead he 'made some notes'. He provided me with these 'notes'.
The notes were not an accurate reflection of the meeting. In his notes he claims that I admitted I had done wrong, which is a complete fabrication. He lies a substantial number of times.
I have a few questions if anyone can help. I am not represented. These are the arguments I was considering making, if anyone could please comment
1 - (assuming I do not reveal the recording) As former employer ignored my requests to see the minutes, I did not have the chance to dispute what was said. I do not believe the notes were accurate. I will therefore tell the court that an assertions made from these notes are not based on anything factual.
2 - (assuming I do not reveal the recording). If I had been given access to the notes, as stated in ACAS guidelines, then the content of both my appeal and my ET1 form would have been different. Therefore, former employer has put into disrepute the entire process.
3 - I could reveal the recording and therefore reveal the lies. However, I am afraid to do this. The court could take a dim view that I recorded the process, and I do not know what chances this recording could be used as evidence.
If anyone could give advice it would be really appreciated.
There was a sole witness making the allegation against me. Six other people were present during the alleged comments, each person was interviewed and all signed statements stating that they did not hear any such comment. Despite this, I was dismissed.
During the disciplinary meeting, only myself and one other person was present. I recorded the meeting using two separate voice recorders. I did not seek permission for this, neither was I told not to record the meeting.
On my appeal I requested the minutes from my disciplinary meeting. This request was ignored. My appeal failed. Tribunal stage then started after employer refused ACAS discussions.
I made another two attempts to gain access to those minutes, I was ignored both times. Today, seven months after first requesting the minutes, former employer stated that no minutes were taken. Instead he 'made some notes'. He provided me with these 'notes'.
The notes were not an accurate reflection of the meeting. In his notes he claims that I admitted I had done wrong, which is a complete fabrication. He lies a substantial number of times.
I have a few questions if anyone can help. I am not represented. These are the arguments I was considering making, if anyone could please comment
1 - (assuming I do not reveal the recording) As former employer ignored my requests to see the minutes, I did not have the chance to dispute what was said. I do not believe the notes were accurate. I will therefore tell the court that an assertions made from these notes are not based on anything factual.
2 - (assuming I do not reveal the recording). If I had been given access to the notes, as stated in ACAS guidelines, then the content of both my appeal and my ET1 form would have been different. Therefore, former employer has put into disrepute the entire process.
3 - I could reveal the recording and therefore reveal the lies. However, I am afraid to do this. The court could take a dim view that I recorded the process, and I do not know what chances this recording could be used as evidence.
If anyone could give advice it would be really appreciated.
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Comments
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It's not clear from your post what stage you are at.
If it is possible you should attempt to submit the recording as evidence. It is relevant to your case, and it is not illegal to record someone, so I don't see the harm in trying. Covert recordings have been used in employment tribunal cases before, it's not unknown and this is very different to a criminal court where there are very strict rules for the admissibility of evidence.
It may be too late to submit it, though. The only slight upside would be it would also be too late for your employer to submit these 'notes'.0 -
First of all, I applaud you for self-representing in this scenario. It is something which people don't always do (sometimes it is better to speak to a solicitor, though, to be fair) but they have the right to do so.
First of all, given you made the recordings in secret, I'm not sure that you could submit them as evidence at Employment Tribunal stage. Might be one worth running past ACAS to be honest.
Also, I would be interested to know how much your request for the meeting notes resembles a Subject Access Request. The ICO states:
You seem to be clearly asking for your personal data (the minute notes relating to you), but the only question is whether you are entitled to it (likely that you are). If you are entitled to it then they *should have* responded within 1 calendar month (even just to tell you that you weren't entitled to them/they didn't have them). If you are saying that it is "seven months after first requesting the minutes" then that's pretty bad like! I would argue that an inference could be made with respect to the unreasonable delay; namely that they have been deliberately evasive and that you cannot trust the notes that they have subsequently sent to you (which should have been sent within 1 calendar month anyway).
Hope this is of help. Some users on here would like me to respond with "speak to a solicitor" because it doesn't break the "giving advice" rule, but I'm hopeful that my breaking of the "advice" rule helps in some way.
I'll sign off by saying that I'm not a legal expert at all; I'm just a lemming, and seek legal advice wherever possible
Such recordings (or at least transcripts from them) have been accepted as evidence in employment tribunals on occasions (an upheld by the EAT). Equally on other occasions they have not been allowed. It is ultimately up to the judge to rule depending on the circumstances of the case.
A case involving (from memory) Amwell School is often quoted as an example as it went to the EAT who ruled that a transcript of at least most of the recording was admissible.
If such a recording later proves that the respondent has given perjured evidence, it does of course give the possibility of them facing criminal charges. So, even if the recording / transcript is not admitted as evidence it can still be a powerful incentive to tell the truth!0 -
We state at the start of any disciplinery/investigation that we don't allow recording to take place - however...it looks like as Undervalued states it is a grey area and you may be able to submit it...
https://www.acas.org.uk/index.aspx?articleid=43100 -
Danielpyne wrote: »Quickly to the point. Back in January I was dismissed from my job after three years. I made a thread about the situation back then, I was accused of making negative comments about another member of staff.
There was a sole witness making the allegation against me. Six other people were present during the alleged comments, each person was interviewed and all signed statements stating that they did not hear any such comment. Despite this, I was dismissed.
During the disciplinary meeting, only myself and one other person was present. I recorded the meeting using two separate voice recorders. I did not seek permission for this, neither was I told not to record the meeting.
On my appeal I requested the minutes from my disciplinary meeting. This request was ignored. My appeal failed. Tribunal stage then started after employer refused ACAS discussions.
I made another two attempts to gain access to those minutes, I was ignored both times. Today, seven months after first requesting the minutes, former employer stated that no minutes were taken. Instead he 'made some notes'. He provided me with these 'notes'.
The notes were not an accurate reflection of the meeting. In his notes he claims that I admitted I had done wrong, which is a complete fabrication. He lies a substantial number of times.
I have a few questions if anyone can help. I am not represented. These are the arguments I was considering making, if anyone could please comment
1 - (assuming I do not reveal the recording) As former employer ignored my requests to see the minutes, I did not have the chance to dispute what was said. I do not believe the notes were accurate. I will therefore tell the court that an assertions made from these notes are not based on anything factual.
2 - (assuming I do not reveal the recording). If I had been given access to the notes, as stated in ACAS guidelines, then the content of both my appeal and my ET1 form would have been different. Therefore, former employer has put into disrepute the entire process.
3 - I could reveal the recording and therefore reveal the lies. However, I am afraid to do this. The court could take a dim view that I recorded the process, and I do not know what chances this recording could be used as evidence.
If anyone could give advice it would be really appreciated.
Why did you not produce your own minutes and share them after the meeting? Who did you take into the meeting who could corroborate your version?
What form do the "notes" take? Is it a photocopy of handwritten scribble with a time & date on? is it an email, or a word document? If the latter 2 then these will have electronic timestamps within them that you can use to show they were not contemporaneous and written after any decision to dismiss.
As others have mentioned, recordings can be used but only if agreed by the panel. Transcripts can be shared beforehand without permission though it will look very strange why you have only produced it after such a long time.
All that said, what is the basis for your claim? Did they follow their disciplinary process? Do you have a protected characteristic?
Previous thread for those interested - also 2 reactions by OP to open questions. I suspect being questioned under oath by a barrister will be a challenge for the OP.
https://forums.moneysavingexpert.com/discussion/5946450/disciplinaryDanielpyne wrote: »WOW
i come to a place to ask for advice about a matter like this and it seems a bunch of people want to come on and attack me rather than help what wonderful people.Danielpyne wrote: »it feels like being attacked people coming on to a message board and making out that im guilty for something because in a post i did not state clear enough i was innocent its like wow, maybe have some benefit of the doubt? and im not flying off any handle either.Originally Posted by shortcrust
"Contact the Ministry of Fairness....If sufficient evidence of unfairness is discovered you’ll get an apology, a permanent contract with backdated benefits, a ‘Let’s Make it Fair!’ tshirt and mug, and those guilty of unfairness will be sent on a Fairness Awareness course."0 -
Just to reiterate the recordings, at my place of employment "secret" recordings have been used by ex employees many times on ACAS submissions where the minutes did not tie up with what was alleged, those cases were settled outside of the court process.
My employee has since tightened up so that HR have to be present at such meetings now, however they do not enforce a no secret recording rule.0 -
The law allows anyone to record anything they are a party to.
It's up to the courts to decide if this evidence (transcribed) is admissible.0 -
We state at the start of any disciplinery/investigation that we don't allow recording to take place - however...it looks like as Undervalued states it is a grey area and you may be able to submit it...
https://www.acas.org.uk/index.aspx?articleid=4310
You can state what you like but ultimately if a recording were to be made it would be up to the tribunal whether to admit it!0 -
The law allows anyone to record anything they are a party to.
Yes - ish!
As you say by recording a conversation you are party to is not a criminal offence. Recording one when you are not there i.e "bugging" (even leaving the recording going whilst you temporarily leave the room) is potentially an offence.
However if you publish the recording (which technically you do if you play it to another person who was not part of the conversation) you may open yourself to civil liabilities.0 -
Undervalued wrote: »Yes - ish!
As you say by recording a conversation you are party to is not a criminal offence. Recording one when you are not there i.e "bugging" (even leaving the recording going whilst you temporarily leave the room) is potentially an offence.
However if you publish the recording (which technically you do if you play it to another person who was not part of the conversation) you may open yourself to civil liabilities.
Indeed. I agree, though I think my point was quite clear
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Previous thread for those interested - also 2 reactions by OP to open questions. I suspect being questioned under oath by a barrister will be a challenge for the OP.
I don't consider you any authority on how I would or wouldn't act under questioning. For the record, It's not my first time in Court, and the previous time I had far more to lose and far worse accusations than his directed at me. I coped quite well and won my case pretty handily.
Why did you not produce your own minutes and share them after the meeting? Who did you take into the meeting who could corroborate your version?
Why would I produce my own minutes? It was not my job as an employee to take minutes, it is the employer's job. It is also their duty to give me those minutes, which this employer failed to do. Besides, I know exactly what was said, I recorded it.
I do not want to get distracted too much with the recording legal/illegal argument. I was concerned more about what the court could do in this case, the case that my former employer kept the notes from me despite me asking for them, and consequently, by doing so, how it changed my appeal and ET1.
Does anyone have experience of this and know how the courts see it?
As an update I contacted the Court today. The adviser there was shocked by this and told me I had to contact them immediately via email. They could not advise me further, as they cannot give advice. Also, ACAS act as mediators, they are not there to advise either.0
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