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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46794
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi Ben, hope you're well... I am requesting your assistance as you have been advising me recently, hope you can help me once more.
The situation at work has progressed.
Following our last meeting with my employer I got really stressed and I think this triggered me to be violently sick for a few days, I had to take 3 sick days. As well as getting better, this time off gave me an opportunity to think everything over and I wrote a letter to the MD, complaining about how I have been treated in the last 6 months or so, and asked them to fix it, otherwise I would have to resort to taking the matter to a tribunal. Admittedly that was a very strong letter, I laid down exactly how I feel about it all; I tried a polite, sugar coated, approach before, but anything I would say would be twisted and used against me.
The MD called me into their office, gave me the re-worded "Verbal Notice" to sign and said that they are very upset by the letter and have decided that it is better for a "third party" to handle the situation from now. They said that "HR person" is going to contact me.
Now, my question is: how should I handle this meeting.
I somewhat aware that they might be lawyering up and this meeting might be a trap of sorts; of course that won't be a impartial party, they are paid by my employer and will be representing them and will be unlikely to have my interests in mind. Can I ask to record the meeting? Should I have representation at this point, or should just go in with an open mind and see what they are going to say? Can they try to turn everything against me as my employer has been doing; I have already been punished by any wrong doing (Verbal Notice)?
I assume I should be very careful in what I say, I suspect the "HR" person will be very skilled in what they do. Would I be able to end the conversation should it start going sideways?
Any further advice?
Many thanks
Submitted: 11 months ago.
Category: Employment Law
Expert:  Ben Jones replied 11 months ago.

Hi there, don’t treat this meeting any different than if it was being taken by the employer. Regardless of who takes it your rights will remain the same. In terms of recording it, you may ask to be allowed to do so but they can refuse. In that case you may wish to consider recording it secretly – it is not illegal to do so and there is actually case law supporting this. You are only allowed to have representation if it is a formal disciplinary meeting so clarify it in advance to see what the purpose of the meeting is.

It is difficult to advise exactly on how to handle this without knowing the employer’s intentions and the exact nature of the meeting. So that is why you need to ask in advance what the purpose of the meeting is and that will allow you to plan your actions. If it is not a formal disciplinary hearing then you should be able to end it as and when you wish because you are not bound to continue with it and you are in effect voluntarily attending it, rather than being compelled to attend it due to formal disciplinary action.

So only answer questions you are happy to answer and do not overthink their involvement too much.

This is your basic legal position. I have more detailed advice for you in terms of the case law that deals with secretly recording meetings, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46794
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 11 months ago.
Thank you very much for your advice, I will definitely ask those questions in advance!
I would appreciate if you could share the details on the mentioned case law, I will surely consider secretly recording.
Many thanks
Expert:  Ben Jones replied 11 months ago.

Thank you. It is not illegal to secretly record meetings between individuals. Whether any legal issues arise as a result depends on the contents of the conversation being recorded and how the recording is to be used.

The first issue is in relation to third party confidentiality. The Data Protection Act 1998 (DPA) applies to situations involving the processing of personal data. If the recording deliberately or accidentally records personal data about a third party, then its use could be restricted by the DPA. As such, try not to keep any recordings that contain such information.

The second issue is to do with the intended use of the recording. If this is to be used as evidence in court, whilst the court retains the final authority on whether it should be allowed as evidence, certain principles exist and can be considered in advance.

The leading case is that of Dogherty v Chairman and Governors of Amwell School. Mrs Dogherty, a teacher in the school, had made secret recordings of an "open" disciplinary meeting that she was subjected to and the subsequent "private" appeal meeting, held in her absence. She then tried to use these recordings as evidence in her claim for unfair dismissal against the school.

The Employment Appeal Tribunal decided the following:

· The contents of the "open" disciplinary hearing were capable of being secretly recorded as it was directly relevant to the teacher's claim

· The recording of the "private" appeal hearing was not admissible as evidence. As this was conducted in private, it was not directly relevant to the claim.

A more recent case is that of Punjab National Bank v Gosain, where an employee covertly recorded private discussions made by the employer as part of a grievance and disciplinary hearing. The employer may inappropriate remarks about the employee and the Employment Appeals Tribunal decided that this is admissible evidence as the comments did not form part of the deliberation process of the grievance and disciplinary.

So whether a court would allow the use of a secret recording very much depends on the contents of the recording and the nature of the meeting that was being recorded. As long as there is no illegal recording of personal data about others and the conversation that was recorded was not part of private deliberations about the issues at hand, there is a good argument that their use as evidence should be allowed.

Customer: replied 11 months ago.
Hi Ben, there has been a development: I asked the questions as per your advice. They are hiring an HR company to formally investigate my complaint.
I am going to be interviewed, so will be the MD and their witnesses that were present in the meetings, as well as other members of my team. Then the final decision will be reached.
Would you be able to offer any advice for me?
Also, would it hurt the situation if I resigned; I really feel the pressure, I hate being here and I seriously doubt that, regardless of the outcome of this investigation, I would ever feel like keeping to work for this company?
Many thanks
Expert:  Ben Jones replied 11 months ago.

ok so it appears that they are treating your complaint as a grievance and are just getting a third party involved to impartially deal with it. I really do not see this being an issue or for you to be concerned about. You are able to terminate the complaint at any time if you wanted to, simply state that you no longer wish to pursue this as a complaint and they cannot force you to continue with it. You are also free to resign at any time, the employer cannot prevent you from resigning or refuse to accept your resignation so it is up to you really if you want to go down that route

Customer: replied 11 months ago.
Hi Ben, thanks...
No, I do not wish to drop the complaint, just wondered whether I could still continue with the complaint say at a tribunal after resigning and claiming constructive dismissal or something?
Would be the "HR people's" decision final or I still could appeal to the Employment Tribunal?
What happens if the MD and their witnesses try to deny that ever happened and lie their way out, are they compelled to say the truth at this stage? The matter is quite serious and they are all in this together; there wasn't an impartial person present in the meetings and I did not have anyone with me.
Can I insist that the "HR people" accept a witness statement from someone who is no longer part of the company, as well from a couple of other employees that also been told not to speak their mother tongue in the past, by the same person (MD)?
Should I bring a lawyer with me to the interview or should I let it play out this time?
Thanks for your advice, much appreciated.
Expert:  Ben Jones replied 11 months ago.

It does not matter what decision the HR person comes to, this can all be taken to tribunal further if needed. In terms of telling the truth, this should always happen of course but sadly it is not always the case. To this day people still even lie under oath in court so there is never a full guarantee that someone will be telling the truth.

Asking them to accept evidence from someone else is something you can do but cannot force them to accept it so they will decide what is relevant and what is not. You cannot legally bring in a lawyer with you unless the employer agrees to it so you would need their consent to that. However, I do not see any point in doing so, it will not change much to be honest and it will just incur unnecessary costs for you

Customer: replied 11 months ago.
Thank you very much!
Expert:  Ben Jones replied 11 months ago.

you are welcome

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