Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

When to disclose covert recordings?

Employment and Discrimination Law

When to disclose covert recordings?

Postby Scienke » Sat Apr 15, 2017 9:20 am

I have an employment problem and am being forced out of my job on a trumped up disciplinary charge. I have accepted that I can't stay working for my current employers and I intend to take them to an employment tribunal when they dismiss me.

I do not have a union and I do not have any colleagues who will come into the disciplinary/grievance hearings with me to act as witnesses. So I asked my employer if they would mind if I recorded these hearings on a voice recorder. They said no I could not. So I did it anyway without them knowing because I simply had no other means by which I could prove their lies.

I now have a number of covert recordings of my line managers telling me things during these hearings that they later lied about. This is evidence of their dishonesty and that they did not follow a fair procedure that I intend to rely upon in court.

At some point I am going to have to disclose these recordings to my employer if I wish to use them at a tribunal. I just don't know when to disclose.

I have spoken to two solicitors who have both given me completely different advice.

The first said that my dismissal may not be as inevitable as I think and I should wait until they actually do it because if I disclose the recordings beforehand the recordings could be used as a legitimate reason for dismissal and play into their hands. She said that only after my dismissal should I let them know about the recordings just prior to the employment tribunal. At this stage the employer will believe that I have no way of proving their lies but the recordings will muddy the waters and they'll realise that I can prove their lies and give them the incentive to settle.

The second solicitor says that I should disclose the recordings prior to the final hearing/dismissal. So the dismissing manager can't claim at a later date that had they known about the lies my line managers told earlier in the process I would not have been dismissed. It may also provide them with an early incentive to settle.

Either way there are risks involved and there's no way of knowing what will happen but I was curious if anyone else had been through something like this or had any opinions on the matter. I've done a search here and I see there are a few threads on the subject of covert recordings but nothing really on when best to disclose them.
Scienke
 
Posts: 107
Joined: Sat Apr 15, 2017 8:34 am

Re: When to disclose covert recordings?

Postby atticus » Sat Apr 15, 2017 10:28 am

Yes, there are arguments on both sides of this. Neither approach is definitely the right one; nor is either obviously wrong. A lot may depend on the people, and you know them better than anyone here does.
User avatar
atticus
 
Posts: 19855
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: When to disclose covert recordings?

Postby Scienke » Sat Apr 15, 2017 11:14 am

I'm aware of punjab national bank v Gosain where covert recordings were deemed admissible.

I'm not certain if the employee actually disclosed the recordings to the employer before leaving. But everything I've read on the case suggests that she didn't disclose them until she resigned and claimed constructive dismissal. I could be wrong about that though.

Constructive dismissal claims are pretty hard to win but I don't really want to work for these people anyway. I want out but I don't want a dismissal on my employment record if I can help it. If I wanted to keep the job I may do things differently but right now I think I'll resign and claim constructive dismissal.
Scienke
 
Posts: 107
Joined: Sat Apr 15, 2017 8:34 am

Re: When to disclose covert recordings?

Postby Hairyloon » Sat Apr 15, 2017 11:29 am

Scienke wrote:If I wanted to keep the job I may do things differently but right now I think I'll resign and claim constructive dismissal.


Right now, I think you would struggle to win, but if that is your decision then you might be best off putting your cards on the table and inviting them to offer to settle.
Take me to your lizard...
User avatar
Hairyloon
 
Posts: 10079
Joined: Thu Nov 01, 2012 3:12 pm
Location: From there to here and here to there... Funny things are everywhere.

Re: When to disclose covert recordings?

Postby Boo » Sat Apr 15, 2017 11:51 am

I disagree.

This has to be a tactical move. You may not need to reveal the fact you recorded the hearing.
I hope you took hand written notes.

Concern yourself with each stage as it progresses.

Transcribe the recording.
Put forward your arguments without revealing your hand.
Wait for their response.
Where necessary debunk claims. Don't show your hand.

Wait...
Let them lead, well you don't have any choice, unless you resign of course.

Initially, your focus should be on the "trumped up charge".
God - "I have made Mankind!"
Angels - "You screwed up a perfectly good monkey is what you did. Look at it. It's got anxiety!"
User avatar
Boo
 
Posts: 3878
Joined: Thu Nov 01, 2012 1:53 pm
Location: On the edge!

Re: When to disclose covert recordings?

Postby Scienke » Sat Apr 15, 2017 1:13 pm

Boo wrote:I disagree.

This has to be a tactical move. You may not need to reveal the fact you recorded the hearing.
I hope you took hand written notes.

Concern yourself with each stage as it progresses.

Transcribe the recording.
Put forward your arguments without revealing your hand.
Wait for their response.
Where necessary debunk claims. Don't show your hand.

Wait...
Let them lead, well you don't have any choice, unless you resign of course.

Initially, your focus should be on the "trumped up charge".


The only issue with letting them lead is that one of their tactics is to deliberately take ages and ages to come to a decision. They know full well that there are strict time limits at the tribunal so they constantly play mind games by setting a hearing date and then cancelling them due to 'unforeseen circumstances' etc.

They also love to carry out protracted 'investigations' that take months. When you ask why they're taking so long they claim it's because they want the investigation to be as rigorous as possible when the opposite is true. Next thing you know more than 3 months has passed since the last time they did something that you might have been able to claim for and your claims have expired.

Right now I have a covert recording that can prove my managers lied in a meeting about the incident that led to the trumped up disciplinary. If I don't disclose that recording in the final hearing then I'm sure I will be dismissed and if I then seek to rely on the recording in court a judge might say "well you should have disclosed it and they may not have dismissed you so it's your own fault you were sacked".

If I do disclose the recording then I may also be dismissed for recording meetings when they said I couldn't. The problem is this recording is all I've got. It's my only leverage.

All that said, my instincts tell me that a covert recording should be the final card played when all reasonable efforts have failed .
Scienke
 
Posts: 107
Joined: Sat Apr 15, 2017 8:34 am

Re: When to disclose covert recordings?

Postby atticus » Sat Apr 15, 2017 1:57 pm

Scienke - type "covert recording" and "secret recording" into the search box. You will find several topics discussing the circumstances in which these are and are not admitted in evidence. You are not the first to come here asking.
User avatar
atticus
 
Posts: 19855
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W


Re: When to disclose covert recordings?

Postby Scienke » Sat Apr 15, 2017 2:41 pm

Thank you Atticus.
Scienke
 
Posts: 107
Joined: Sat Apr 15, 2017 8:34 am

Re: When to disclose covert recordings?

Postby dls » Sat Apr 15, 2017 2:59 pm

The two bits of advice need not be contradictory - they demonstrate that only a small difference in the way you present things can make all the difference as to what to do.

By the time constructive dismissal is a choice, it is a very likely to be a losing choice. It requires an assertion by the employee that the employer has behaved in such a way as to fundamentally undermine your relationship with them, so that you could not possibly continue - ie that you have no choice but to leave immediately.

Anything less than this is not a clear cut constructive dismissal.
David Swarbrick (Admin) dswarb@gmail.com - 0795 457 9992
User avatar
dls
Site Admin
 
Posts: 12260
Joined: Thu Nov 01, 2012 1:35 pm
Location: Brighouse, West Yorkshire

Next

Return to Employment

Who is online

Users browsing this forum: No registered users and 1 guest