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When to disclose covert recordings?

Employment and Discrimination Law

Re: When to disclose covert recordings?

Postby atticus » Tue Apr 25, 2017 10:19 pm

Here's a scenario. Employment judges are under pressure. They have to manage cases, and get through them on time.

Claimant tries to prove he didn't "do it" (see above). His evidence does not help with the question whether the disciplinary process was fair. Judge knows that the evidence simply won't help the Claimant. He needs to get the case moved on ...

I'm not saying that this is what happened in the cases where people have claimed their evidence is ignored. But I have seen the situation I have described.
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Re: When to disclose covert recordings?

Postby Hairyloon » Tue Apr 25, 2017 11:49 pm

Personally I suspect that as much blame falls on the administration as on the judges, if not more.
I forget the details, but I got the clear impression at the beginning of my case that trying to follow the rules appeared to throw them into confusion. :roll:
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Re: When to disclose covert recordings?

Postby Scienke » Wed Apr 26, 2017 8:53 am

Hairyloon wrote:Personally I suspect that as much blame falls on the administration as on the judges, if not more.
I forget the details, but I got the clear impression at the beginning of my case that trying to follow the rules appeared to throw them into confusion. :roll:


Yes. When it looked likely that I'd be going to a tribunal I went along to watch one just to see how it was. At the one I saw the judge actually seemed to be getting sucked into an argument by the employers barrister about whether or not the employee 'did it'. Eventually it was the employee who had to remind them that they should only be discussing whether or not the process was fair and not whether he did the deed.

Admittedly this is just one instance and Judges are only human. But it must be frustrating to enter into a process that is supposed to be run a certain way only to find that the ruleset you have prepared for isn't being adhered to by the very people who are supposed to be in charge.
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Re: When to disclose covert recordings?

Postby Hairyloon » Wed Apr 26, 2017 9:39 am

Barristers ought to know better. Were I the judge, I would think that to be a smokescreen...
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Re: When to disclose covert recordings?

Postby dls » Wed Apr 26, 2017 10:01 am

Eventually it was the employee who had to remind them that they should only be discussing whether or not the process was fair and not whether he did the deed.


Not quite. The Tribunal has to be careful not to substitute its opinion for that of the employer, but in addition to the process being fair, the tribunal has to test whether the employer had proper grounds for reaching the conclusion they did. In fact the Tribunal were very probably here trying to assist the claimant. They heard the claimant's argument that this was none of their business, and may have been overpolite in not correcting him but it is not their job either to educate either party.

This shows perhaps the dangers in making the sort of assertions made in this thread about the impartiality and skill of a tribunal.
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Re: When to disclose covert recordings?

Postby Scienke » Wed Apr 26, 2017 1:21 pm

Yes you could very well be correct there. The employee may have shot himself in the foot.

I would never want to stop people from being able to get professional legal advice but I do wonder what, if any, impact it would have if you prevented employers and employees from having professional legal representation.

Instead the tribunal would simply hear from the employee making the claim and the individual managers defending themselves. No lawyers or barristers allowed.

This might help to balance things out and perhaps bring it back to the informal approach that employment tribunals were supposed to be.
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Re: When to disclose covert recordings?

Postby dls » Wed Apr 26, 2017 1:42 pm

You are right. When Employment (then Industrial) Tribunals were established, great play was made of ensuring that the procedures would not require legal representation. It would, I think, not be good to ban legal representation.
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