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Ben Jones
Ben Jones, UK Lawyer
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Can an employer use a personal taped phone conversation between

Resolved Question:

Can an employer use a personal taped phone conversation between 2 employees as evidence to implicate a third employee without the knowledge of the conversation being taped?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

What was the nature of the conversation and the actual reasons for recording it?

Ben Jones :

PS: I am travelling at present and won't be able to provide full answer until later tis evening if that's ok

Customer: The taped conversation was between two employees who we're discussing me and alleges comments I had made. The conversation was being recorded by one of the employees in an attempt to catch the other employee sayings things about the company in order to use this against him.
Ben Jones :

Are they disciplining you?

Customer: I was asked into an informal investigation, notes taken, and basically abused, I was then given a transcript and was told I had no future in the company. The transcript conversation in relation to me is untrue. They tried ,to bluff me by telling me they were going to make it formal. I said ok. I was asked in to the office 10 minutes later and told they'd give me three months money to go if I accepted there and then. I told them I would not respond until I thought about it they said ok think about it.
Ben Jones :

How long have you worked there for?

Customer: 3 years 6 months
Ben Jones :

ok thanks leave it with me please I will respond fully this evening

Customer: Do I leave this window open or how do you respond
Ben Jones :

you don't have to, you can get back to it later on, you should get an email when I have replied on here

Customer: Ok thank you
Ben Jones :

Many thanks for your patience. In terms of using a recorded conversation, where the recording was made by one of the people party to the conversation, it is entirely possible to do so if it is relevant to the allegations in hand. The recording would be the same as having the employees providing the information in the conversation as evidence in an investigatory meeting. For example the employer could have asked both employees to provide evidence in relation to the issues being investigated and they cold have still given the employer the same information that was discussed in the recording and that could have been used as formal evidence against you. So the actual use of the conversation is not in itself unlawful.


 


However, there does appear to be something going on behind the scenes t=where the employer is keen to get rid of you for some reason. They have already made you an offer to leave although they cannot force you to do so. If they wanted to remove you then they would need to ensure it is done fairly and legally.


 


In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:


• Conducts a reasonable investigation;


• Follows a fair disciplinary procedure;


• Has reasonable grounds for believing the employee was guilty; and


• Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.


 


In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:


 


1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.


 


2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.


 


3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.


 


In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.


 


If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer.

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer: When the recordings were made there were no allegations, the recordings were made to enable allegations to be brought against one the employees. The conversation the two parties engaged in about me was hearsay relating to the refusal of a holiday request.
Customer: I did make the comments suggested during the taped conversation so how can that be used against me
Customer: Did not sorry
Ben Jones :

in that case recording the conversation and using it to raise a complaint would be the same as an employee going to the employer and raising a complaint with the exact same information so it will not change anything in that respect. The issue is that your employer is now faced with your word against that of your colleagues'. It is not uncommon to have false or unsubstantiated allegations raised in the workplace and it is really for the employer to investigate the truth behind these and make a decision on who it is likely is telling the truth. The employer should not just rely on what was said in that conversation and they must conduct a reasonable investigation before any formal action is taken. So if you refuse to leave, the employer has to follow the formal disciplinary procedure I outlined above and the fairness of any action taken against you will depend on that, especially the investigation that the employer has conducted.

Ben Jones :

Has this clarified things for you?

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