September 2014

Disciplinary hearings and secret recordings

It is becoming more and more common for employees to use mobile devices to secretly record meetings with managers and even to leave the device recording during deliberations at disciplinary hearings. Smartphones and their recording apps are the reason for this.

Our advice to both parties is to have a note-taker present. Employers should get the employee to sign to confirm that the notes are accurate – since the employer’s notes are more likely to help its case and not the employee’s.

Thanks to recent Employment Appeal Tribunal decisions, generally the employee will be allowed to use their secretly-recorded evidence of a meeting at a later tribunal hearing.

Consequences of secret recordings at disciplinary hearings

In theory this shouldn’t pose a problem, since you will have acted above board in and around the meeting, however it can leave the employer with egg on your face if the recording shows that its notes contained significant mistakes or omissions.

But even worse, if the employee only confesses to the recording late in the employment tribunal process and it conflicts with anything your witnesses have remembered in good faith, it can wrongly casts doubt on the rest of their testimony before the tribunal.

And if managers voice opinions or ask questions which are ill-advised, a recording allows the employee to refer to these even if they helped to arrive at a legally sound decision in the end.

If a disciplinary hearing involves deliberations or taking HR advice, it is a good idea for the employer to make sure that the employee hasn’t left anything behind in the room or even to do this part of the process somewhere else.

On the bright side, secret recordings by staff can potentially help the employer as they may be a disciplinary offence and can show that the trust has gone from the relationship. Nevertheless, we recommend that where the trust and confidence has broken down, employees who distrust the employer’s note-taking and can’t find a suitable companion should probably make a recording.

But the reality is that for employers they are a worrying trend. The answer is to get your best note-taker to attend disciplinary hearing.

And the best note-taker isn’t necessarily the fastest typist, but someone who is has experience of reducing what they hear into shorter notes in real time.

Both sides should liaise with the other to try to produce a set of notes that is agreed, by merging the two. We find that this makes taking advice and pursuing employment tribunal claims a lot smoother.

On-call

If you have staff who need to be available to deal with work as it arises (perhaps on an emergency basis), you may have grappled with the question of whether you need to pay them for being on-call.

Examples include key-holders, medical and caring staff, the emergency services, farm managers and certain employees in the catering and service industries. Sometimes, accommodation is provided for the specific purpose of being on call.

Where time on call has to be spent at the workplace, this counts as working time, whether or not the employee is actually working.

Hours spent on call away from the workplace, where the employee is free to pursue leisure activities, only count as working time for time actually spent working. But there are grey areas, for example when you require your staff to be contactable and to respond promptly if needed.

This was highlighted recently in a recent employment tribunal case brought by ambulance paramedics (Truslove and another v Scottish Ambulance Service). They were obliged to stay within a three mile radius of the ambulance station, ensuring that they could reach the station within three minutes if needed. Subject to that, they could do their own thing. No-one lived in that radius.

They were required to be on duty in case their services were needed. They weren’t given rest periods if there was nothing to do and they asked an employment tribunal whether being on call was the same as being at work. Was it working time? Rest time? Their own time?

Some definitions and principles:

• Time spent working, at your employer’s disposal and carrying out duties.
• Where a worker is obliged to stay in the workplace and be available for work if needed, this is working time and not a rest period, even if allowed to sleep – the EU case of SIMAP v Valencia.
• This is the case even if it’s not the workplace, but a place nominated by the employer – EU case of Jaeger and MacCartney.
• If they are merely obliged to be in a general radius from the workplace so as to respond promptly, this could be a rest period – Northern Irish Court of Appeal case of Blakley v South Eastern Health and Social Services Trust.

The Employment Appeals Tribunal found that the paramedics were working. Here are some pointers for deciding the likely outcome:

A requirement to be present at a place or on call but very near a place determined by the employer will be working time.

Lack of freedom to do their own thing is relevant. But merely requiring an employee not to go abroad in on-call time would not make it working time

A requirement to meet a target response time of three minutes is so short that it points towards working time.

Where the on call location is necessarily away from home, or necessarily at home, that time is more under the control of his employer and therefore working time.

If still in doubt look at the purpose of the Directive, which is to improve living conditions and health and safety.

The take-away from this case is that workers who are subject to significant geographical constraints in on-call time are likely to be considered to be working during it.