To conclude our series dealing with questions raised at our Handling Grievances webinar in April, here are our thoughts on three last queries around how events at grievance and investigation meetings are recorded.
- If the individual states they want to record the meeting, are we able to say no?
In principle, yes. But consider the cosmetics of that in front of a sympathetic Employment Tribunal at a later point – why wouldn’t you allow a recording unless you either weren’t sure you would be able to conduct the meeting fairly or actively intended not to do so? Especially if the employee cannot find a willing colleague as companion, perhaps lacks the language skills both to follow and make notes at the same time, or has past experience of important matters raised with you somehow not making it into the minutes, an ET may take a reasonably disapproving view of your refusal.
Bear in mind also that pretty much all the talking at your grievance meeting should ideally be done by the employee anyway, with the employer’s role limited to the opening and closing formalities and the occasional request for clarification. Even though it is certainly a little inhibiting to know as you speak that posterity awaits, therefore, that should not much matter. And by prior agreement, better to agree on his recording it so long as you get a copy then deny it and find out too late that he has done so anyway.
- What if a recording is produced by the employee further down the line or at an ET?
Covert recording of meetings generates a lot of heat and light in Tribunal-world, and we have offered some more detailed thoughts in past posts on this blog one, two and three. The first is about how such recordings can be admissible, the second on the difficulties employers face when the employee making the recording stays in the business and the third on whether and when making covert recordings will be misconduct. In (too) brief summary, the fact that the recording was made without your knowledge and possibly even in the face of your instructions not to will not make it inadmissible as evidence in the ET. However, it may separately constitute misconduct, possibly even gross misconduct, by the employee. As a minimum, it may take the middle stump out of the relationship of trust and confidence with him going forwards and so perhaps justify termination on those grounds.
But keep firmly in mind that however livid and betrayed you feel by a covert recording, the ET will have little but sympathy for an employee whose recording shows clear evidence of improper behaviour by the employer, especially if that behaviour had been denied.
- Must notes taken at meetings with other witnesses to a grievance be shared with either accuser or accused?
Ultimately these documents will probably be obtainable by either of them via a DSAR or through the litigation disclosure process, but that is not a reason to produce them on any lesser request. After all, the key point is less what the witnesses said and more how much of it the grievance manager accepted as (a) true and (b) relevant to his/her decision. The question for the complainant should only be whether he gets the redress sought and if he does not, the explanation of that by the grievance manager ought to be clear enough to allow him to understand why. That might certainly include a statement, for example, that witness Mr Smith told me X, but that will still be filtered through the grievance manager’s perceptions and no doubt phrased in a way potentially far less pointed, personal or critical than Mr Smith’s actual verbatim evidence. The focus of attack, procedurally-speaking, should then be the grievance manager’s decision, not the witness. That said, any grievance manager should be aware that interview notes will be disclosable in the end and so would be most unwise to base his/her decision on Mr Smith having said X where those notes will show that he did not.
Perhaps most importantly in practice, offering immediate access to witness evidence would have huge scope for the creation of challenge, grievances and retaliatory action, etc., by employees suddenly aware of the detail of what their colleagues say about their conduct (and hence victimisation or whistleblowing detriment claims from the witnesses) and few employees would be willing to give an unvarnished version of events if they know that it will immediately be pored over word-for-word by the subject of the meeting. From the basic ER point of view, therefore, some things are best left not unsaid, but certainly unread.