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Dealing with very dubious evidence in a disciplinary case.

Published 06 July 2022

Imagine your horror if negative comments about a colleague and your manager that you thought were private are brought to the attention of your boss.

Amelia faced the threat of dismissal after she was secretly recorded during a phone call criticising a workmate and a ‘waste of time’ task given to her by her manager.

The recording of the call was handed to Amelia’s boss, the one she had mentioned during the call, and she was suspended from work.

Amelia, a family support worker, was on a break and sitting in her own car with a colleague, when she took a handsfree telephone call from her wife.

During the call Amelia was asked about her day. She referred to an incident with another member of her team, which led to a disagreement between the pair.

Amelia used a derogatory term and bad language when talking about the other member of staff.

She then went on to complain about a report, but did not mention any names or details of the case, and a visit her manager had asked her to do which she described as a waste of time.

Unbeknown to Amelia her male colleague sitting in the car with her, covertly recorded much of the conversation on his mobile phone.

He would later claim he did it because he was uncomfortable about what was being said.

Amelia was invited to attend a disciplinary hearing to face allegations of a breach of confidentiality and a loss of trust and confidence. She was warned dismissal was a potential outcome.

Amelia, who had worked for her employer for just over two years, feared the worst before she contacted the Castle Associates Employee Support Centre.

When Amelia met with our representative she had not yet been given a copy of the recording. Our representative immediately contacted the employer to request a copy.

He was concerned about the use of it and reliance on it given the manner in which it was obtained. The company initially refused to provide it for ‘data protection reasons.’

Following an exchange of correspondence, in which our representative pointed out withholding disciplinary evidence and denying access to it was a breach of the ACAS Code of Practice, arrangements were made for him and Amelia to listen to the recording prior to the hearing.

It was clear the recording had been edited, as there were two short clips that referred to the member of staff and manager. Our representative requested the full recording of the conversation.

The company again refused to provide it at first. It eventually did after our representative strongly asserted Amelia was entitled to a copy of it.

The full recording included conversation in which Amelia’s wife spoke about a health matter, the two discussed a household repair bill and pregnancy of a teenage family member.

Our representative noted the recording had started well before the comments Amelia made about the other member of staff and manager.

Amelia was shocked by the full recording, the way in which it had been done and the personal information it captured.

A formal grievance was raised and submitted on her behalf. It was on various grounds, which included the use of the recording  was unfair and that it was a gross invasion of privacy that could not be justified.

Our representative requested the disciplinary process be suspended to deal with the grievance, which the employer agreed to.

At the grievance meeting our representative challenged the use of the distasteful recording. He argued the underhand way in which it was obtained and its content could not reasonably justify the actions of the employee who recorded it and its use.

Reference was made to personal information included in the recording, the fact it was started before any alleged comments of concern were ever made and the infringement of Amelia’s privacy.

It was part of a comprehensive grievance presentation at the end of which our representative contended the disciplinary case should be thoroughly reviewed and dismissed.

A week later Amelia was informed the disciplinary process would not go ahead.

 

 

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