I recorded a disciplinary meeting without disclosing this!

[purplewitch]

Although this is a bit of a long story, I will try to keep it brief.
Basically I do not have a direct line manager as my former Chief Officer left the organisation in sept 2012. I was asked by the board of trustees to stand in as an "interim CO" as well as do my own full time job.
I agreed to do this but after several months I felt the board of trustees were not providing me with the support I needed and were over burdening me with more and more work to do. As a result of that I stood down as interim CO in July 2013 and resumed my normal full time job.
This obviously did not make them very happy and since then they have been making my life very difficult.My job is one of an operational one and I am responsible for the day to day running of a service that we provide to the public.
Last month I had a member of staff off sick unexpectedly and had many issues to consider on an operational level, such as covering his existing work load, ensuring the rest of the team were not overburdened by this absence and of course continuing to provide a service to all of our clients. I considered this to be an operational matter entirely and as such did not consult with the trustees as i did not feel it was a strategic matter.
Anyway to cut a long story short the trustees have disciplined me because I failed to seek their permission to allow this staff member to work part time from home, despite his GP providing a sick note to state he could return to work on light/part time duties.
I was asked to attend a disciplinary meeting on 24th Oct but on 19th Oct I was rushed to hospital with a perforated ulcer and required emergency surgery - as a result I was off sick and couldn't attend the meeting.
Upon my return on to work on 5th Nov, I was notified by email on 8th Nov that the disciplinary meeting would take place on the 12th Nov. All I received in advance of the meeting was the trustees reasons for why they thought I was guilty of misconduct, and despite them referring to talking to other staff members about this in advance of the meeting no statements or any other documents were provided to me either in advance of the meeting or at the meeting.
I obviously prepared a written defense and justified why I made the decision I had - I left this in their office two hours prior to the meeting as I assumed that they would meet and discuss all relevant matters prior to the hearing.

When I attended the hearing on my own, they told me they hadn't had time to read everything because one of them had had a migraine and 2 because the other one had been too busy. They admitted to skim reading the document and said if it was relevant they would deal with it, but if it wasn't they wouldn't. They also told me that it was not down to a GP to decide that someone can return to work? I asked whose decision it was then if not the GP and they replied that it was the managers and that it was a grey area?
I am worried that i recorded the whole meeting without disclosing to them that i was doing so.
Having listened to the recording, it is shocking to hear some of the things they said. They were fouled mouthed when I left the room and one of them said they wanted to f**king slap me - accused me of acting like Mother Theresa! And they couldn't wait for me to make an appeal as the appeals officer will run rings around me and wouldn't that teach me a f**king lesson! They made personal and insulting comments on my appearance, considering I was only 21 days out of hospital after having emergency surgery and at that time was still on a high level of antibiotics.
I do not want to appeal as i feel it is already a foregone conclusion.
I have received a written warning that will remain on my file for 12 months. I have been doing this job since 2006

I have asked for a copy of the minutes of the meeting taken at the disciplinary and they have told me that I have no right to view them as they are theirs and not mine and basically reminded me I could have taken someone in with me but chose not to do so! If I had then they could have taken minutes for me.
I am seriously thinking of raising a grievance but am concerned that I was not up front about recording the meeting on my mobile hone. By the way, my phone was on the desk the whole time for everyone to see.
There is a lot more to this, but pretty much this is it in a nutshell.
Any advice on this would be very much appreciated - especially regarding not disclosing recording the meeting.
Many thanks in advance
Purplewitch

[charitynjw]

Re: I recorded a disciplinary meeting without disclosing this!

Hi purplewitch, & welcome to Legal Beagles.

A couple of questions.

Were you informed in writing of your right to be accompanied by an appropriate person?

Did they put the refusal of the minutes in writing? (letter or email)

[MissFM]

Re: I recorded a disciplinary meeting without disclosing this!

The below might be helpful:

Q If an employee records a meeting covertly, can they use it as evidence at an employment tribunal?

Yes. Employment tribunals take a generous view on what evidence is admissible. The fact that a meeting is recorded in secret does not mean it cannot be used as evidence.
The exception here is that the covert recording of private deliberations (for example, discussions about what the outcome to a disciplinary hearing should be) may not be admissible due to public policy reasons. The case law in this area suggests, however, that even these deliberations may be admissible if the employee involved says that they are the only evidence of alleged discrimination.

From http://www.personneltoday.com/hr/leg...ance-meetings/

Don't know how authoritative/definitive it is.

[charitynjw]

Re: I recorded a disciplinary meeting without disclosing this!

The below might be helpful:



From http://www.personneltoday.com/hr/leg...ance-meetings/

Don't know how authoritative/definitive it is.

Very, MissFM

Amwell School v Dogherty UKEAT/0243/06 (see attachment)

Also http://www.alcumusgroup.com/industry...conversations/

[enquirer]

Re: I recorded a disciplinary meeting without disclosing this!

Good link charitynjw.

I note that private conversations will be admissible if they contain evidence of discrimination (which is to say, corrupt practice).

[enquirer]

Re: I recorded a disciplinary meeting without disclosing this!

I am seriously thinking of raising a grievance but am concerned that I was not up front about recording the meeting on my mobile phone.

The recording shows quite clearly that you were right to do so. Their behaviour is appalling - and you can prove it.

As Charitynjw points out, legally, a problem looks unlikely (they may talk about 'Human Rights', but this may be ignored). It appears that the decision has been made in advance and one of them even says that they would like to assault you.

It looks as if they want to get rid of you and are now trying to set things up in order that they may do so. You may decide that you have no option other than to go on the attack. If you do so, you have the means to destroy them.

[purplewitch]

Re: I recorded a disciplinary meeting without disclosing this!

Hi purplewitch, & welcome to Legal Beagles.

A couple of questions.

Were you informed in writing of your right to be accompanied by an appropriate person? Yes

Did they put the refusal of the minutes in writing? (letter or email)

Yes, by email

[purplewitch]

Re: I recorded a disciplinary meeting without disclosing this!

Thank you to everyone who has responded to my post.
I have a free consultation with an employment law solicitor tomorrow - so will let you know how I get on.
Once again, many thanks to all
Purplewitch

[purplewitch]

Re: I recorded a disciplinary meeting without disclosing this!

I have spoken to an employment law solicitor today and he was very negative about my situation. He said I should appeal against the way in which the disciplinary was handled and admitted the employer had got some of it wrong - but other than that that I was wrong for recording without disclosure and that i could be dismissed for misconduct.
I am very disappointed obviously with this advice as it seems to contradict some of the opinions on here.
What do others think of this advice? He did say that he was not an expert on data protection but emphasised that i was wrong in the first place for recording the meeting without disclosure and I was on a "sticky wicket"
Purplewitch

[teaboy2]

Re: I recorded a disciplinary meeting without disclosing this!

The employment lawyer is wrong about the recording, as charity pointed out the tribunal accepted that such recordings can be made Amwell School v Dogherty UKEAT/0243/06. Best thing do here is appeal, but also issue a formal grievance, as clearly they made their decision in advance which is a breach of disciplinary and grievance procedures set out by Acas. There bad mouthing you is evidence of bullying and possibly discrimination (and certainly defamation) and also threats by one who clearly would love to slap you which would be assault if he/she did so.

Also on what grounds did they discipline you in the first place, i.e. what breach of policy - I know you said that it was because you allowed an employee to work part time from home, which if requested by them is known as flexible working and you need to take reasonable steps to allow it if possible. It is the managers decision not the board of trustees and its part and parcel of your job as a manager to manage peoples work. Also yes it is up to a GP to say who is fit or not fit for work or what type of work can be carried out by them such as light duties or recommending working from home if possible and the company has to make reasonable adjustments too accommodate employees with short term as well long terms disabilities or health issues if they wish to return to work and are declared fit enough, even in limited capacity to return by the GP. So basically what company policy are they saying you were in breach off that gave them grounds to discipline you?

sending them a copy of the recording with your appeal or grievance letter, qouting the ET case above in support it being acceptable to covertly record would also be a good idea, as it will likely scare the shit out of all involved in the meeting, as they will then know that you have all the evidence you need to hit them hard in the pockets.

Also have they provided you with a transcript of the meeting? does the transcript match what was said in the recording? If you haven't got a transcript from them then you should request one first before sending a copy of the recording, and see what they have left out of the transcript that was in fact said at the meeting.

Also data protection would not apply in regards to the recording as you were simply recording what was being said in your presence and about you personally. You were the subject of the meeting as well as a participant. Only way data protection may apply would be if you shared the recording with a third party, that is not a representative of employer or a legal adviser/representative of your own. Off course it may also be shared with the Employment Tribunal too.

EDIT - Notices you already asked for a copy of theminutes and they refused. In that case point them too section 51 of the Acas Disciplinary and grievance procedure code of practice http://www.acas.org.uk/media/pdf/l/p/CP01_1.pdf

Also note that such minutes need to be signed by both parties to confirm they are accurate, obviously in your case you have a recording that will likely demonstrate they are not and can ask that minute be altered to reflect what was stated in the recording - This would put the employer in a pickle, because if they agree to amend, they would be admitting wrong doing on there part, where if they refuse and you produce the recording at tribunal, then the minutes they have will have little to no substance to support their defense and they'd likely get a tribunal size 10 boot firming placed up their backsides.

[purplewitch]

Re: I recorded a disciplinary meeting without disclosing this!

" On what grounds did they discipline you in the first place, i.e. what breach of policy? - There is no policy that they have relied upon.
This is what my letter states:

"Dear *****
This letter is to confirm the decision made and explained to you at the disciplinary meeting held on 12th Nov.

It was thought by the trustees present that you mishandled the sickness absence of a staff member which may have resulted in further medical problems or have given rise to professional problems. This was done without the knowledge of the trustees of the organisation and your poor management and disregard for their position could have resulted in the company being put at risk. You were given a written warning which will remain on your file for 1 year.
The next paragraph simply confirms my right of appeal."

As said previously they have refused to provide me with a copy of the minutes taken as they state "The notes taken at the disciplinary meeting are ours and we are not able to share them with you. We reminded you of your opportunity to have a supporter with you but you declined. If you had had a supporter he/she could have taken notes for your records, unfortunately this was not the case" Sent by email.

Thanks again for all advice and opinions given.
One last question - Should I appeal and raise a grievance at the same time or make it two separate issues?:tinysmile_aha_t:

[enquirer]

Re: I recorded a disciplinary meeting without disclosing this!

I have spoken to an employment law solicitor today and he was very negative about my situation.

No surprise - they often take the employers part from the outset.

He said I should appeal against the way in which the disciplinary was handled and admitted the employer had got some of it wrong ...

Yes - they mishandled it and that is an avenue of attack.

... but other than that that I was wrong for recording without disclosure and that i could be dismissed for misconduct.

What this really means is that he, personally, doesn't think you ought to have done it because it's not 'nice'.

What do others think of this advice?

Fire him and go elsewhere.

He did say that he was not an expert on data protection ...

That's obvious ...

[MissFM]

Re: I recorded a disciplinary meeting without disclosing this!

No surprise - they often take the employers part from the outset.


Yes - they mishandled it and that is an avenue of attack.


What this really means is that he, personally, doesn't think you ought to have done it because it's not 'nice'.


Fire him and go elsewhere.


That's obvious ...

Couldn't agree more. Whilst a solicitor should warn you of unwelcome realities and pitfalls in your legal position, the last thing you need is one who is not actively on your side and apparently too lazy to spot changes in the law that help your case.

[CleverClogs]

Re: I recorded a disciplinary meeting without disclosing this!

From http://www.personneltoday.com/hr/leg...ance-meetings/

Don't know how authoritative/definitive it is.

It is certain to be more authoritative than were the daft opinions of the fake "barrister", Ms Logan.

[MissFM]

Re: I recorded a disciplinary meeting without disclosing this!

It is certain to be more authoritative than the daft opinions of Ms Logan were.