Our webinar on disciplinary proceedings last week began unpromisingly – there is no new law and little new practice to learn, I had to say, not necessarily what you want to hear from your legal training session. Nonetheless, we had several hundred sign-ups, perhaps tribute to the enduring mystique and indeed terror implicit in conducting contested disciplinary proceedings, especially remotely.
A handful of questions came up which we did not get to at the time, so here are the answers.
If you refuse consent to the recording of the disciplinary meeting by the employee, can a recording made covertly still be used in any later disciplinary proceedings?
Yes. There may be all sorts of conduct or trust and confidence issues arising out of the making of a covert recording (or still more so, a recording which has been expressly forbidden) but none of them will affect its admissibility in litigation. Unlawfully obtained evidence might be an issue in criminal proceedings and television dramas, but the ET will not remotely care. If you find that your employee has made such a recording, therefore, your first step is not to try and get it excluded from the proceedings (since you won’t succeed) but to get hold of it as soon as possible so that you can try to take the teeth out of whatever it says well in advance. That means seeking a copy of the recording itself, not just a transcript. If it appears only at the last moment, then it may be necessary to seek an adjournment of the...
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