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Ben, I am dealing with this on behalf of a family member as…

Hi Ben, I am dealing with...
Hi Ben,
I am dealing with this on behalf of a family member as she is very fragile with everything going on... i have attended meetings with her and have her full permission to do all i can to help her through this period.
Having been off and still certified absence sickness with Stress at Work, I am due to face a disciplinary hearing 19th February. It is very messy as a) i was facing a formal stage 1 now stage 2 sickness absence but that seems to have gone quiet,
b) i put in a formal grievance against my management team 22nd August 2017, that hearing was attended over 2 sessions in December due to my mental fragility and the involvement of the aforementioned formal stage absence, the grievance and the disciplinary hearing. I am still awaiting the outcome report although i have been told that some measures have already been put into place.
c) disciplinary hearing concerning 3 allegations: 1 on a specific date in August, rude & offensive remarks, 1 leaving place of work early, again improper remarks causing offence to colleagues.I have 2 questions relating to the absent from work:
I am currently going through my preparation of defence as the investigation was done in my absence. I have been told today that a voice recording of a telephone call by my manager to me to check my whereabouts was made, I was not told the call was being recorded. Is this legal?As the investigation report has already been given to me including witness statements etc. can the this voice recording be introduced at this late stage?Thank you.
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Answered in 18 minutes by:
1/18/2018
Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
Satisfied Customers: 50,517
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Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

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How long has she worked there for?

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Hello, not sure if you saw my initial query above - How long has she worked there for?

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Customer reply replied 4 months ago
Hi, I have outlined the problem above. but will repeat it.
I am dealing with this on behalf of a family member as she is very fragile with everything going on... i have attended meetings with her and have her full permission to do all i can to help her through this period.
Having been off and still certified absence sickness with Stress at Work, Iam due to face a disciplinary hearing 19th February. It is very messy as a) i was facing a formal stage 1 now stage 2 sickness absence but that seems to have gone quiet,
b) i put in a formal grievance against my management team 22nd August 2017, that hearing was attended over 2 sessions in December due to my mental fragility and the involvement of the aforementioned formal stage absence, the grievance and the disciplinary hearing. I am still awaiting the outcome report although i have been told that some measures have already been put into place.
c) disciplinary hearing concerning 3 allegations: 1 on a specific date in August, rude & offensive remarks, 1 leaving place of work early, again improper remarks causing offence to colleagues.I have 2 questions relating to the absence from work:
I am currently going through my preparation of defence as the investigation was done in my absence. I have been told today that a voice recording of a telephone call by my manager to me to check my whereabouts was made, I was not told the call was being recorded. Is this legal? The hospital has never mentioned recording calls with staff as general practice.As the investigation report has already been given to me including witness statements etc. can the this voice recording be introduced at this late stage?Thank you.
Customer reply replied 4 months ago
Sorry Ben, She has worked in A&E for close to 32 years.

Great, thank you. To answer your questions:

1. I am currently going through my preparation of defence as the investigation was done in my absence. I have been told today that a voice recording of a telephone call by my manager to me to check my whereabouts was made, I was not told the call was being recorded. Is this legal?

It is legally possible to record a conversation between two individuals but they should not distribute it to other third oarties, which we not involved, without the consent of those being recorded. So it is the recording itself which should really not be forwarded, but he can still use it to make a note himself about what was discussed because after all he was present in the conversation and would have known the contents anyway - the recording could be used to refresh his memory. So if he was to just make a written note about it, even if he used the recording to help him on the way, that would be acceptable. He should however not distribute or use the recording to third parties without her consent.

2. As the investigation report has already been given to me including witness statements etc. can the this voice recording be introduced at this late stage?

It potentially can be because it is not a piece of evidence to which she had no knowledge - she had the conversation so she would have been aware of its full contents and as such the recording and what is in it should come as no surprise. However, as mentioned, she can dispute the use of it, as a recording, although it will not prevent it just turning into a memo instead, based on the manager's recollection of events.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Ben Jones
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Customer reply replied 4 months ago
I have two more questions based on the above,
a)if the conclusions to the investigation have been made, published and distributed, can the Disciplinary Hearing officer still introduce evidence after the fact?
b) the voice recording made without the knowledge of the person and the distribution of the recording made to multiple parties (including a full transcript of the call) without the consent of the person called, what would happen now?
Thank you
Kind regards

Hi there,

It is indeed possible to introduce further evidence after the investigation has concluded, as long as such evidence is shared before any disciplinary hearing

The recording - this is an internal complaints issue to be honest. Unlikely it will be dealt with outside of the workplace by any third party legally. Therefore, a grievance is the most likely outcome in order to challenge it

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Customer reply replied 4 months ago
Many thanks Ben. The only challenge i can see is if the case goes to tribunal, i have no idea of the likelihood has we have yet to have the Disciplinary Hearing.

what would you be claiming for exactly?

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Customer reply replied 4 months ago
it has become very complicated, a formal grievance was put in against her management team, we are now waiting for the summation.
formal stage 1 absence sickness has now become formal stage 2 but we have heard nothing further on this and the allegations resulting in the disciplinary all going whilst she has been off sick since 14th August 2017 with GP certified stress at work. Her mental health is very fragile.
She was removed from her place of work and put in a different department 11th August due to the allegations leading to the disciplinary.
The witnesses statements in the disciplinary evidence are mostly non accusatory (bit wooly or didn't hear anything or see anything), there only appears to be 1 statement from an immediate colleague that is riddled with inconsistencies and an almost manical dislike of the lady in question.
As to the time off with stress, this has built up over a period of 3 years when she had her Cardiac Infarction in the department, there has been an attempted suicide some time later due to stress and depression, there has been an assault by one of the locum doctors where whilst having what at time was thought to be another CI was told by her manager not to report it as they would deal with it. None of the occupational health recommendations were even looked at let alone put into action, no risk assessments, specialist equipment, change of roles etc.
Given the stressful environment that she works in coupled with her cardiac problems, duty of care by her management team were in short supply, that is why the formal grievance was put in. Wherever she sought help, union (her rep told categorically he could not assist her,) HSE (one email response and then nothing at all), 2 managers in HR (no response to emails), eventually it was taken to the CEO who got the ball rolling.
I've managed to get her to the Grievance meetings of which we are now awaiting the summary.
The Disciplinary hearing is later next month - it was all done whilst she was off sick. Investigations, witness statements, conclusions made, published and distributed in her absence.
The Formal Stage 2 meetings have not been arranged as yet apart from 1 letter to say it had escalated from Formal Stage 1 to Formal Stage 2 and she would hear more in due course nothing further has been heard.
So a lot of very stressful elements going on whilst she has been off sick with which she has had to deal with, letters every week regarding the sickness inviting her to formal meetings, letters every month inviting her to disciplinary hearings and letters almost weekly inviting her to resolution of grievance meetings.
Huge amount of undue pressure and not once did anyone telephone to ask how she was.
Huge can of worms.
Kind regards
Lesley

Thank you. In terms of tribunal, unless you are claiming for discrimination, such as disability discrimination, you will not be able to make a claim until a decision has been taken anyway. After that it would be a case of unfair dismissal, if she is dismissed, or constructive dismissal if she is forced to resign because of this. As such you may have to wait until the disciplinary has finalised anyway

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