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When to disclose covert recordings?

Employment and Discrimination Law

Re: When to disclose covert recordings?

Postby Hairyloon » Sat Apr 15, 2017 10:40 pm

dls wrote:Anything less than this is not a clear cut constructive dismissal.

There is no such thing as a clear cut constructive dismissal. We have looked here before at a case where the employer did not pay wages for work that had been done, then stopped providing him any work, and that somehow turned out to not be a constructive dismissal. :?

dls wrote: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...

How does "immediately" figure in relation to the cumulative effects of multiple breaches?
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Re: When to disclose covert recordings?

Postby atticus » Sat Apr 15, 2017 10:48 pm

Resignation being immediate aftervthe 'last straw'.
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Re: When to disclose covert recordings?

Postby Hairyloon » Sun Apr 16, 2017 9:26 am

What about Buckland vs Bournmouth?
In between the breach and the resignation, the employer "cured" the breach, and the decision was (as I recall) that a breach cannot be cured while the employee is deciding whether to treat it as a fundamental breach.
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Re: When to disclose covert recordings?

Postby dls » Mon Apr 17, 2017 8:57 am

You are right about Buckland v Bournemouth (See below).

My point is that every bit of delay increases the clear risk of a finding of waiver. That an employer cannot cure his fundamental breach implies not a lot as to create any sense that an employee can delay much making his decision.
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Re: When to disclose covert recordings?

Postby dls » Mon Apr 17, 2017 8:58 am

Buckland v Bournemouth University Higher Education Corporation: CA 24 Feb 2010
References: [2010] 4 All ER 186, [2010] EWCA Civ 121, Times 03-May-2010, [2010] IRLR 445, [2010] ICR 908, [2011] 1 QB 323, [2010] 3 WLR 1664
Links: Bailii
Coram: Sedley LJ, Carnwath LJ, Jacob LJ
Ratio: The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed the university's appeal saying that the found repudiatory breach had been remedied before the resignation. The University now said that its response was within the range or reasonable responses open to it.
Held: The employee's appeal was allowed. The court was asked whether the conduct of an employer who is said to have committed a fundamental breach of the contract of employment is to be judged by a unitary test or a 'range of reasonable responses' test, and whether an employer who has committed a fundamental breach of contract can cure the breach while the employee is considering whether to treat it as a dismissal. Once an employer had repudiated the employment contract it was not open to it to cure that repudiation.
Sedley LJ said; 'I would accept, that reasonableness is one of the tools in the employment tribunal's factual analysis kit for deciding whether there has been a fundamental breach. There are likely to be cases in which it is useful. But it cannot be a legal requirement. Take the simplest and commonest of fundamental breaches on an employer's part, a failure to pay wages. If the failure is due, as it not infrequently is, to a major customer defaulting on payment, not paying the staff's wages is arguably the most, indeed the only, reasonable response to the situation. But to hold that it is not a fundamental breach would drive a coach and four through the law of contract, of which this aspect of employment law is an integral part.
Where, if at all, the reasonableness of the employer's conduct may enter the picture is through the statutory additions to the law of contract. ' and
'the statutory provision for justification of a dismissal appears at more than one point not to fit constructive dismissal, notwithstanding the express inclusion of constructive dismissal in the statutory scheme. But, reverting to my example, if the employer could satisfy a tribunal that, albeit not a listed reason, the unexpected lack of funds amounted to some other substantial reason for dismissal within s. 98(1), and that in all the circumstances the employer had 'acted reasonably in treating it as a sufficient reason for dismissing the employee' as required by s. 98(4), it might be arguable that the claim should fail. '
As to whether a repudiation could be remedied, 'if we were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, takes away the innocent party's option of acceptance, it could only be on grounds that were capable of extension to other contracts, and . . I do not consider that we would be justified in doing this. That does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation: a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends.'
Jacob LJ dissented in part, finding that a party could not cure a repudiatory breach: 'I do not share Sedley LJ's regret in holding that a repudiatory breach of contract, once it has happened, cannot be 'cured' by the contract breaker. Once he has committed a breach of contract which is so serious that it entitles the innocent party to walk away from it, I see no reason for the law to take away the innocent party's right to go. He should have a clear choice: affirm or go. Of course the wrongdoer can try to make amends - to persuade the wronged party to affirm the contract. But the option ought to be entirely at the wronged party's choice.
That has been the common law rule for all kinds of contract for centuries. It works. It spells out clearly to parties to contracts that if they actually commit a repudiatory breach, then whether the contract continues is completely out of their hands. The rule itself discourages repudiatory breach. In the context of employment law it means that employers know that if they treat an employee so badly as to commit a repudiatory breach, then they cannot hang on to the employee unless they can persuade him or her to decide to stay.'
Statutes: Employment Rights Act 1996 94 95
This case cites:
    - Appeal from - Bournemouth University Higher Education Corp v Buckland EAT (Bailii, [2009] UKEAT 0492_08_0805, [2009] IRLR 606, [2009] ICR 1042)
    <a title='Source of text]EAT[/url] UNFAIR DISMISSAL: Constructive dismissal
    Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant's resignation did not amount to constructive dismissal.<br . .
    - Cited - Western Excavating (ECC) Ltd v Sharp CA ([1978] QB 761, [1978] ICR 221, Bailii, [1977] EWCA Civ 2, [1978] 1 All ER 713, [1978] IRLR 27, [1978] 13 ITR 132, [1978] 2 WLR 344)
    To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
    - Cited - Amnesty International v Ahmed EAT (Bailii, [2009] UKEAT 0447_08_1308, Times 06-Oct-09, [2009] ICR 1450, [2009] IRLR 884)
    <a title='Source of text]EAT[/url] RACE DISCRIMINATION - Direct discrimination
    RACE DISCRIMINATION - Indirect discrimination
    RACE DISCRIMINATION - Protected by s. 41
    UNFAIR DISMISSAL - Constructive dismissal
    Claimant, of . .
    - Cited - Farnworth Finance Facilities Ltd v Attryde ([1970] 1 WLR 1053)
    If after a breach, the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the . .
    - Cited - W E Cox Toner (International) Ltd v Crook EAT ([1981] IRLR 443, [1981] ICR 823)
    In a case of constructive dismissal, the ordinary contractual rule applies; the wronged party may give the other party an opportunity to remedy the breach. In doing so he does not waive the breach and thereby affirm the contract.<br . .
    - Cited - Claridge v Daler Rowney Ltd EAT (Bailii, [2008] UKEAT 0188_08_0407, [2008] IRLR 672, [2008] ICR 1267)
    <a title='Source of text]EAT[/url] UNFAIR DISMISSAL: Constructive dismissal
    The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
    - Cited - Farnworth Finance Facilities Ltd v Attryde ([1970] 1 WLR 1053)
    If after a breach, the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the . .
    - Cited - Abbey National Plc v Fairbrother EAT (Bailii, [2007] UKEAT 0084_06_1201, [2007] IRLR 320)
    <a title='Source of text]EAT[/url] Unfair Dismissal
    Disability discrimination
    The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
    - Cited - Miles v Wakefield Metropolitan District Council HL ([1987] ICR 368, [1987] 2 WLR 795, [1987] 1 AC 539, Bailii, [1987] UKHL 15, [1987] IRLR 193, [1987] 1 All ER 1089, [1987] 1 FTLR 533)
    The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
    - Cited - Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL (Gazette 25-Jun-97, House of Lords, Bailii, [1997] 3 WLR 95, [1997] UKHL 23, [1998] AC 20, [1997] ICR 606, [1997] 3 All ER 1, [1997] IRLR 462)
    The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, 'stigma damages' after the termination.
    Held: It is an implied term of any contract of employment that . .
(This list may be incomplete)
This case is cited by:
    - Cited - Drs Burton, Mcevoy and Webb (A Partnership) v Curry EAT (Bailii, [2010] UKEAT 0174_09_2104)
    <a title='Source of text]EAT[/url] UNFAIR DISMISSAL - Constructive Dismissal
    UNFAIR DISMISSAL - Polkey Deduction
    STATUTORY GRIEVANCE PROCEDURE - Impact on Compensation
    Claimant employed as Practice Manager of a partnership of . .
    - Cited - Assamoi v Spirit Pub Company (Services) Ltd EAT (Bailii, [2011] UKEAT 0050_20_3007)
    <a title='Source of text]EAT[/url] UNFAIR DISMISSAL - Constructive dismissal
    The Claimant worked as a head chef. He had rather a turbulent period of employment with his employer. The Tribunal made a finding that the Claimant's manager had . .
(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 17-Apr-17
Ref: 401790
2017/04/17
Employment

See also: http://swarb.co.uk/buckland-v-bournemou ... -feb-2010/
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Re: When to disclose covert recordings?

Postby Hairyloon » Mon Apr 17, 2017 10:48 pm

dls wrote:My point is that every bit of delay increases the clear risk of a finding of waiver...

It is a good point, giving that I fear it may encourage OP to rush into it, when it looks very likely that his employer will be giving more straws, any one of which could be the last one.
I think he would be better to put in writing something about how the delays are undermining the essential trust and confidence, and set out the issues with particular detail of the lies that he has on tape.
If he does that well then it should improve his case if they don't resolve the issues.
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Re: When to disclose covert recordings?

Postby shootist » Tue Apr 18, 2017 8:25 am

IMHO, the only real use of covert recordings, especially in the tribunal context, is to challenge a decision or statement after the opposition has made a significant cockup. Showing you hand before merely allows the opposition to change tack before the crunch comes, and a recording becomes a merely a distracting irrelevance and in fact can be used to discredit the person offering the recording.

By way of example in a scenario I am more familiar with. You are reported by the police for a crime. You tape the officer saying something that would discredit his evidence. When is the best time to publicise it? I would say in court when he's given his evidence. You challenge his evidence on what he said and he denies it. You then ask if he had said such things then would he remember> He might be expected to say that he would remember because he would never say such a thing. Then you have him lying under oath and can hope to discredit the rest of his evidence, and possibly his career. OTOH, expose it before and the chances are that the police may still be able to proceed by altering their approach, the officer may well continue his career untroubled, and will remember you while you may still face prosecution. All is speculation, but most tactical plans are.
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Re: When to disclose covert recordings?

Postby Scienke » Tue Apr 18, 2017 9:00 am

Hairyloon wrote:
dls wrote:My point is that every bit of delay increases the clear risk of a finding of waiver...

It is a good point, giving that I fear it may encourage OP to rush into it, when it looks very likely that his employer will be giving more straws, any one of which could be the last one.
I think he would be better to put in writing something about how the delays are undermining the essential trust and confidence, and set out the issues with particular detail of the lies that he has on tape.
If he does that well then it should improve his case if they don't resolve the issues.


The issue with setting out the issues relating to the lies on the recording is that they will immediately ask me to prove that my managers lied. Then I find myself back at square one where I need to make the decision whether or not to disclose the recordings. Going on previous form they will then carry out a deliberately protracted "investigation" that will undoubtedly take many months after which time it may be too late for me to even make a claim at the tribunal. They may then also decide to dismiss me for covertly recording their managers in the first place. And this might be regarded by the tribunal as a fair reason for dismissal, although I'd have to question any tribunal that thinks it reasonable to dismiss an employee who has, when asked to do so, simply provided evidence to an employer of dishonesty within it's management ranks. Even if that evidence is a covert recording.

Like Atticus said earlier these decisions have to be based on how well the employee knows the employer and how they may react to the recording. Some employers will regard it as a complete breach of trust and will not hesitate to dismiss. Other employers will be glad to have been provided with evidence that they have managers who are capable of being dishonest and will sack the managers. And other employers will be so mortified at the prospect of having their dirty linen washed in public that they will simply offer to settle in the hope that the details of their dishonesty stays private.

It's always a risk but in my circumstances I am growing to believe that in my case the best time to disclose covert recordings is the period after dismissal but before the tribunal.

shootist wrote:IMHO, the only real use of covert recordings, especially in the tribunal context, is to challenge a decision or statement after the opposition has made a significant cockup. Showing you hand before merely allows the opposition to change tack before the crunch comes, and a recording becomes a merely a distracting irrelevance and in fact can be used to discredit the person offering the recording.

By way of example in a scenario I am more familiar with. You are reported by the police for a crime. You tape the officer saying something that would discredit his evidence. When is the best time to publicise it? I would say in court when he's given his evidence. You challenge his evidence on what he said and he denies it. You then ask if he had said such things then would he remember> He might be expected to say that he would remember because he would never say such a thing. Then you have him lying under oath and can hope to discredit the rest of his evidence, and possibly his career. OTOH, expose it before and the chances are that the police may still be able to proceed by altering their approach, the officer may well continue his career untroubled, and will remember you while you may still face prosecution. All is speculation, but most tactical plans are.


I would love nothing more than to get my managers in court, see them lie on oath and then be able to pull out my recordings proving they have lied. But from the little I know about civil law (perhaps criminal law too?) evidence you intend to use in court must be disclosed prior to court proceedings.
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Re: When to disclose covert recordings?

Postby Hairyloon » Tue Apr 18, 2017 9:07 am

I'll answer more fully when I have a keyboard to type on, but regarding your last point, if that is really what you want then you can sit on the recordings until after they commit perjury and then you report that as a crime.
In my experience of tribunals, the rules about disclosure are largely ignored.
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Re: When to disclose covert recordings?

Postby shootist » Tue Apr 18, 2017 9:16 am

Scienke wrote:The issue with setting out the issues relating to the lies on the recording is that they will immediately ask me to prove that my managers lied.


do you ask a barber if your hair needs cutting. State your case and prove it at the tribunal.


Scienke wrote:I would love nothing more than to get my managers in court, see them lie on oath and then be able to pull out my recordings proving they have lied. But from the little I know about civil law (perhaps criminal law too?) evidence you intend to use in court must be disclosed prior to court proceedings.


You are not going to use your tape at court necessarily, but if you lose it becomes insurance for an appeal. It becomes of value only when you can prove the lie. If the other side presents a written pre-hearing statement, signed by the managers in question, that you can definitively contradict with the recording then perhaps that would be the time to expose the lie. I don't know how much such statements are obliged to contain, it may be a summary in which case I suspect you would achieve little. In a criminal case you would need something like a statement signed by one or more of the managers which you can disprove to the extent that it could only be a lie.

Consider, expose what you call a lie beforehand. Could the other side present it as a miss-recollection of the facts and was therefore not a lie but a mistake? That is but one possible get out for them. You need to be in a position where you can prove that what management said could only be a lie before revealing the recording. Fail and your recording will prove only that you breached trust.
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