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When to disclose covert recordings?

Employment and Discrimination Law

Re: When to disclose covert recordings?

Postby Scienke » Tue Apr 25, 2017 1:15 pm

Yes I found it to be a fascinating read. It must be remembered though that most people who have had good experiences of something generally don't take to the internet to talk about it. They usually just get on with their lives. So the comments below that article from individuals who feel let down by the ET system may not be a fair representation of the system itself.

That said, it convinced me not to go down the ET route. Life's too short to find yourself with a good case and strong evidence only to get a judge that seems to instinctively favour the authority figure, which in this case would be the employer.

I find it very sad that a system that was apparently brought in to ensure that employees aren't put at a disadvantage by employers with deep pockets who can afford good legal representation often find themselves in that very position.
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Re: When to disclose covert recordings?

Postby atticus » Tue Apr 25, 2017 1:47 pm

There is a simple point that is often forgotten, and which I have made before.

The unfairness in unfair dismissal relates to the decision making process. The Tribunal does not look at whether the employee "did it". It looks at the process. Was the decision taken after a fair process and was it within the reasonable range of responses?

If the Employment Judge's answer tothose questions is "yes", the ex employee loses.
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Re: When to disclose covert recordings?

Postby Scienke » Tue Apr 25, 2017 2:23 pm

I can see how employees who are emotional and hurt might still feel aggrieved when perhaps all a judge has done is looked at the evidence dispassionately and come to a reasonable conclusion.

But I have also seen how easy it is for an employer to make themselves appear to have behaved reasonably when they have not.

I have seen how internal investigations can be made to appear plausible when in reality lies are being told and other members of staff are having pressure applied on them to make statements that aren't true.

Sometimes when faced with an employer using dirty tricks you feel that you have little choice but to stoop to their level just to achieve a level playing field.
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Re: When to disclose covert recordings?

Postby atticus » Tue Apr 25, 2017 2:38 pm

Your second paragraph hits the nail on the head. A well organised employer is at an advantage. The employer who fires first and takes advice after - believe me these do exist - has a problem.
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Re: When to disclose covert recordings?

Postby Hairyloon » Tue Apr 25, 2017 3:14 pm

Speaking from my experience, the Employment Tribunals are a shambles. They took a simple and straightforward case, which could have easily been decided on the papers, and confused, complicated and dragged it out to such an extent that it became a breach of ECHR Article Six, just on the time issue.
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Re: When to disclose covert recordings?

Postby Scienke » Tue Apr 25, 2017 4:05 pm

Some of the comments under the etclaims article I linked to are amazing if true. A consistent theme seems to be judges being selective and ignoring evidence. I understand that a judge has the right to decide that a piece of evidence isn't as compelling as an employee might think. But I am surprised that an appeal court could not even consider such matters if the evidence was genuinely ignored.

More than that :many times solicitors and witnesses of the Respondents feel free to lie and to fabricate events because some judges encourage that, being totally biased against the Claimants. Even more ‘more than that’ : sometimes when they do not do it, or if they do it badly, judges do it for the Respondents.


If you believe that your tribunal acted in good faith, but made errors in law in reaching its judgment, then you have a good chance at the EAT.

If, however, you suspect that your tribunal was biased against you, then I fear you have no chance at the EAT. As you know, you will not get anywhere by alleging bias. What we lay people call ‘ ignoring evidence’ or ‘ being selective with the facts’, is likely to meet with the response that the EAT cannot consider such matters. Even if the tribunal made appealable errors in law, be prepared for the EAT to ignore these, if you suspect the tribunal made these errors deliberately to get ‘the right decision’ in your case.


The EAT judge ignored me. It was as though I had not said all of that. He took one of my points, greatly modified it, then dismissed his modified point. The judgment concluded by acknowledging that I had made no appeal about payment of notice pay, and went on to explain why such an appeal would have been rejected also, if it had been made.

The EAT mirrored the behaviour of the lower tribunal in ignoring me and completely reconfiguring my case.


The moral of this story, for respondents is: keep your dismissal letters vague and wide- ranging; keep changing your defence, and rely on the Employment Judge to pick something out and fashion a winner.


I feel very let down, disappointed and distressed by the system.
I was recently sacked for a ‘breakdown of relationship’ with my line manager.
We had a poor working relationship in which he had criticised my performance and I had complained about bullying.
I was shocked that they suddenly decided to use ‘breakdown of relationship’ as a reason for dismissal. Apparently it comes under the ‘SOSR’ category of dismissals so the employer doesn’t have to follow any contractual procedure: it’s a much faster way of getting rid of someone even than gross misconduct.
It was a gruelling hearing in which the employer – a quango -had a barrister and I had to represent myself. Even so I think the employer side came across very badly in the hearing.
When the judgment came it was a complete shock. The judge was highly selective in the reporting of the facts and people who had attended said that it was difficult to believe it was the same case.
The employer was judged to have had a fair reason for dismissal (SOSR), to have acted reasonably and the case was dismissed.


http://etclaims.co.uk/2014/03/is-the-tr ... m-corrupt/
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Re: When to disclose covert recordings?

Postby dls » Tue Apr 25, 2017 4:15 pm

Your response is a rational reluctance to get involved in litigation.

Be careful however to take the comments you relate too much at face value. They may have some justice, but might (and we cannot tell from here) simply be from people who lost after providing evidence which was not as good as they thought.
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Re: When to disclose covert recordings?

Postby Scienke » Tue Apr 25, 2017 4:17 pm

Absolutely. It could just be sour grapes. None of us can know for sure unless we were there and witnessed the proceedings ourselves. However, some of the comments sound and look very plausible to me.

Like this one

I don’t believe corruption is an issue. I sat as an ET member for 5 years and there was never a hint of it. Where the system does fail is that Claimants will not normally be able to produce corroborative witnesses (all too scared for their own jobs) while the employer can produce a long trail of lawyers and senior managers (all well-briefed) and extend the proceedings for days. Should it come down to a costs application (admittedly rarely granted) the Claimant can effectively be bullied out of the case by the prospect of significant financial loss.
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Re: When to disclose covert recordings?

Postby Hairyloon » Tue Apr 25, 2017 4:19 pm

Scienke wrote:Some of the comments under the etclaims article I linked to are amazing if true. A consistent theme seems to be judges being selective and ignoring evidence...


What tends to happen is that the judge decide that the evidence does not say what the claimant thinks it says which is something they are allowed to do. If they ignore it altogether, then that is an error in law (though I cannot off the top of my head recall the reference).
The big problem there is that claimants so often try to make the claim that evidence was ignored that it appears to have prejudiced the higher courts to assume the former.
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Re: When to disclose covert recordings?

Postby Scienke » Tue Apr 25, 2017 4:22 pm

Hairyloon wrote:
Scienke wrote:Some of the comments under the etclaims article I linked to are amazing if true. A consistent theme seems to be judges being selective and ignoring evidence...


What tends to happen is that the judge decide that the evidence does not say what the claimant thinks it says which is something they are allowed to do. If they ignore it altogether, then that is an error in law (though I cannot off the top of my head recall the reference).
The big problem there is that claimants so often try to make the claim that evidence was ignored that it appears to have prejudiced the higher courts to assume the former.


Yes, but some claimants are saying that despite their evidence being ignored altogether the EAT was still not prepared to discuss the matter. I don't understand how an EAT could know if evidence was ignored if they won't even be drawn on the subject of previously submitted evidence. If this actually happens then that cannot be justice. Again IF it happens.
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