Advice please - Disciplinary notes

nicechap

Danielpyne wrote: »

I don't consider you any authority on how I would or wouldn't act under questioning. Nor do I claim to be 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. I'm sure Oscar Wilde would have an appropriate quote about twice in court.



Why would I produce my own minutes? reply like that to a barrister and they will tear you apart. It was not my job as an employee to take minutes, it is the employer's job. You have a copy of their disciplinary policy which confirms this?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. Which is why you could have produced a set and saved the court an awful lot of time and trouble.

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?
yes, but I'm bowing out due to your lack of answers
As an update I contacted the Court today. The adviser there was shocked if you say soby 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.I suspect most contributors here know that

Good luck with your case, your reactions on this and your previous thread would on balance of probabilities suggest to me that you did call your pregnant boss a s***.

No doubt dome new Perry Masonesque explanation will be forthcoming.

Danielpyne

No barrister is going to rip me apart. You have no idea of the facts.. You came on here making assumptions about things you have no idea about. When I react, you then make further assumptions that are completely wrong.

I have already been cleared of saying what you have just accused me of saying. That I did not say it is settled. I was dismissed for other things that were apparently revealed during the investigation stage, and that this person claims that I admitted to. I never admitted to it. My recording proves it.

You're a typical forum warrior, you post history is generally filled with you posting hateful comments to people asking for help. You are wrong.

EDIT: That is the reason the notes were hidden from me. Because the notes contained factually incorrect information of me admitting something I clearly did not admit.

Now if anyone can please give advice I would appreciate it.

Crazy_Jamie

A lot has been said on this already, but I just want to address the questions that were actually asked.

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.

Well, the first two sentences are valid assertions. The assumption in the first instance will be that the notes from the other person are based on their best recollection of what was said. It is of course open to you to challenge their accuracy and even suggest that the other person has deliberately produced false notes if you wish to, though it would be unusual for a Tribunal to find that notes have been deliberately falsified. It does happen, but not very often.

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.

This is not a valid submission and will not get you anywhere. If you want to amend your ET1, you can make an application to do that, though that will not normally be necessary simply because you've received evidence that says something different to what you expected it to say.

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.

This is the crux of the issue, and there is in fact relevant information on this point that has not been mentioned so far.

It's not clear where you are in the process, but it seems that disclosure has already been completed and your employer's notes have sometime after that. Technically, they have breached their duty of disclosure by not including that document either in their list or in the documents that they originally sent to you. However, and this is the important bit for your purposes, your recording is also a disclosable document. You are therefore under a duty to disclose it. The fact that it is not a physical document is irrelevant; digital recordings are also 'documents' for the purposes of disclosure.

You do not technically therefore have a choice; that recording is a disclosable document and must be disclosed. Of course no one is going to physically make you disclose it, but if you don't and reveal its existence during the trial, you will find yourself in some difficulty explaining why you haven't disclosed it previously, especially as it seems to support your case and rebut an element of their evidence.

In terms of the admissibility point, it is true that it is up to the Tribunal whether or not the recording is admitted, but it generally will be unless it contains without prejudice discussion or there is some other similar reason why it should not be. It's common for transcripts of recordings to be inserted into trial bundles; there isn't normally any need for the recordings to be physically played for the Tribunal.

As to the consequences of covert recording, the EAT has confirmed in the past month that recording a meeting covertly will generally be misconduct (Phoenix House v Stockman - click here for the judgment, or Google it if you want a summary). However, practically the consequences for you of that decision will likely be limited. It's difficult for the employer to argue that you would have been dismissed anyway for making the recording because they likely wouldn't have found out about it if not for the proceedings, and it is highly unlikely to be gross misconduct in any event. The employer could argue that your award should be reduced on a just and equitable basis because you covertly recorded the meeting. It's something that may be argued more after Phoenix House, but to my mind that argument is a bit of a long shot. I suppose technically the other side could apply for costs but there would have to be some unusual circumstances for a costs award to be justified on the basis of the recording alone. Costs due to late disclosure of a disclosable document are more viable but still unlikely in the context of the Employment Tribunal. Late evidence is routinely dealt with far more flexibly in the Employment Tribunal than (say) in the County Court, so the chances of a costs award coming out of this are pretty low.

So in short, the procedure rules technically require you to disclose that recording, and to my mind there's a strong argument for doing so if it rebuts evidence from your employer. There are some risks associated with that, but generally speaking transcripts of such recordings will be admitted as evidence and the chances of other consequences are generally low (with the obvious caveat that there is always some chance of consequences, and I don't have the full picture from a handful of forum posts).

Danielpyne

Thank you for that reply. In respect to the statement being falsified, there is not way that he mistakenly believed I admitted something that I did not. My dismissal was based upon me admitting these things, which I never did. I just listened to the recording again all the way through, and I do not at any time even imply that I did any of this, I rejected this completely.

I still have time to submit documents. I will do this.

My concern about not receiving the minutes was not after the documentation stage, this was when I actually received them. But after the disciplinary meeting itself (I requested to receive them within 14 days - ignored). Also after the appeal stage, and also at the time of writing my ET1. These requests were ignored.

This is the kind of thing I am referring to, my employer failed to do this.

5. DO - Ensure that someone who is not involved in the case is appointed to take notes on the proceedings, making sure that these are full and thorough, as far as possible. Employees should be given the opportunity to read the minutes through at the end of the meeting, and initial each page to demonstrate their agreement that the minutes are an accurate reflection of what has been discussed in the meeting. The employee should then be given a copy of the minutes for their records. If the employee consents, it might be easier to record the meeting digitally and have the minutes typed out afterwards.

Crazy_Jamie

Danielpyne wrote: »

Thank you for that reply. In respect to the statement being falsified, there is not way that he mistakenly believed I admitted something that I did not. My dismissal was based upon me admitting these things, which I never did. I just listened to the recording again all the way through, and I do not at any time even imply that I did any of this, I rejected this completely.

I appreciate your position, but things are rarely as black and white as one person thinks when it comes to Tribunal proceedings. Even if you are very clearly right about what was said on the basis of the recording, that does not mean that the note was deliberately falsified. I appreciate that you think it was, but that doesn't mean the Tribunal will agree with you.

Danielpyne wrote:

I still have time to submit documents. I will do this.

It would be an idea to also provide a transcription of the recording at the same time, just so everyone can focus primarily on that rather than having to listen back to the recording every time they want to check something.

Danielpyne wrote:

My concern about not receiving the minutes was not after the documentation stage, this was when I actually received them. But after the disciplinary meeting itself (I requested to receive them within 14 days - ignored). Also after the appeal stage, and also at the time of writing my ET1. These requests were ignored.

This is the kind of thing I am referring to, my employer failed to do this.

5. DO - Ensure that someone who is not involved in the case is appointed to take notes on the proceedings, making sure that these are full and thorough, as far as possible. Employees should be given the opportunity to read the minutes through at the end of the meeting, and initial each page to demonstrate their agreement that the minutes are an accurate reflection of what has been discussed in the meeting. The employee should then be given a copy of the minutes for their records. If the employee consents, it might be easier to record the meeting digitally and have the minutes typed out afterwards.

It's something worth noting, but it is unlikely to have much relevance for the purpose of your claim. The point only goes so far, and I don't think it's as far as you want it to go.

Undervalued

Danielpyne wrote: »

My concern about not receiving the minutes was not after the documentation stage, this was when I actually received them. But after the disciplinary meeting itself (I requested to receive them within 14 days - ignored). Also after the appeal stage, and also at the time of writing my ET1. These requests were ignored.

This is the kind of thing I am referring to, my employer failed to do this.

5. DO - Ensure that someone who is not involved in the case is appointed to take notes on the proceedings, making sure that these are full and thorough, as far as possible. Employees should be given the opportunity to read the minutes through at the end of the meeting, and initial each page to demonstrate their agreement that the minutes are an accurate reflection of what has been discussed in the meeting. The employee should then be given a copy of the minutes for their records. If the employee consents, it might be easier to record the meeting digitally and have the minutes typed out afterwards.

Crazy Jamie's input is, as always, excellent.

I was going to make a similar general comment illustrated by item 5 (which you quote presumably from your employee handbook?).

I think you are getting too bogged down in technical points of procedure. Remember, an employer's disciplinary hearing is not a court of law. In fact there are no longer even statutory procedures that have to be followed - only guidelines. The law requires that an employer makes a reasonable attempt at conducting a fair process, it does not expect them to have the legal knowledge of a high court judge or the detective skills of Inspector Morse! Conducting things differently to ACAS's guidelines or the company's own procedures, can still be a fair process in law.

Yes, if minutes were taken then it is reasonable to expect them to be an fairly accurate summary of the hearing. Obviously you are entitled to a copy, either via a SAR or, now that tribunal proceedings have been started, via the disclosure rules. However don't assume that by failing to precisely follow a specific paragraph in a company handbook the employer will be laughed out of court.

Danielpyne

Hello guys! I'm back.

Thank you to those people that did offer advice. In the end I decided not to make a transcript. I tried some software but really it was taking far too long.

Anyway, just to let you all know, the hearing was set for yesterday, but some hours prior I was contacted by ACAS as the respondent wanted to settle. I was initially aiming for a sum that would amount to almost 20 times my weekly wage. We settled for 14 times my weekly wage.

I'm a 7/10 or 8/10 in happiness about it. I am confident I would have won at the hearing. Mainly because neither the person that dismissed me nor the person who made the allegations (he made more during the appeals stage), submitted witness statements. I am told by friends still at the company that he point blank refused to attend the hearing and started to change his story.. But who knows? I guess I played it safe but I am also pretty happy with the amount, especially as it is more than my loses due to the dismissal.

I am in a new job now, slightly between money (only 4% more), probably around the same prospects, so not a step up or down. Costs me more in fuel to get there so I suppose it wipes out the pay increase.

I'd advise people to just go for it. I bought this book - Employment Tribunal claims by Naomi Cunningham and Michael Reed. It covers alot, but not everything. My case was somewhat different to usual and it really didn't help with big parts, but did with others. It really isn't a difficult process, but it's surprising how long it takes to write up witness statements etc, so prepare well in advance. I left mine a little late and regret having to stay awake late three nights in a row to finish it.

I'd also advise people to request their ET1 from the Tribunal service, or keep a copy. I submitted mine and did not keep a copy, and one wasn't emailed to me.

If anyone does need to ask a question on here I would advise them to ask, but just to ignore the hostility. Seems to happen in every post. Don't worry about it. Thank you for the advice given here and in my other thread!

[Deleted User]

Brilliant well done x

nicechap

nicechap wrote: »

No doubt some new Perry Masonesque explanation will be forthcoming.

I claim my £5.

Danielpyne

nicechap wrote: »

I claim my £5.

what does this mean?