Topics covered in this month's webinar include

• Diversity and Inclusion
• Equal Opportunities Monitoring
• Consultative Ballots by Trade Unions
• Pregnancy and Maternity Rights
• Holiday Entitlement
• Covert Recordings
• Data Protection Matters – Disclosing Witness Statements

Scott Alexander, Head of Learning and Development at Legal Island, discusses your Northern Ireland employment law questions and topical HR issues with Seamus McGranaghan from the employment team at O'Reilly Stewart Solicitors.

Don’t forget to visit the ‘Seamus Says – Employment Law Discussion’ section on the employment law hub, which provides answers to over 130 employment-related questions addressed throughout this webinar series.

Poll Questions

Is your organisation required to monitor the composition of their workforce and of job applicants under the FETO?

Do you have employees who refuse to complete statutory monitoring forms in relation to religious background in NI?

If you cannot establish religious background using the ECNI guidance do you hazard a guess before making the statutory returns?

Diversity and Inclusion

The first one we're going to do is on diversity and inclusion, Seamus, and it says:

Is it okay for diversity and inclusion councils, that's internal groupings, to focus on minority groups of employees?

Seamus: I think this is a good and an interesting question, particularly given now that within our workforces within our offices and there is so much diversity and whether that's diversity on an ethnic background or whether it's to do with any of the protected characteristics or whether there's disabilities, seen and unseen, and obviously the LGBTQ and all those sorts of diversity issues that arise.

Certainly, the workplace now is very different to what it has been in the past, and we also have so much movement of traffic in terms of people coming in. In Northern Ireland as well, we do have that diversity.

So, this is a sort of a new enough venture that has hit us, and this diversity and inclusion councils. And essentially, just to give a better clarity in and around what they are - is that it's straightforward just a group of employees, and it will include the senior leaders and executives. They act on behalf of the company really to jumpstart and manage the diversity and the inclusion process within the organisation. So, the idea is that where that you have diversity within your organisation, it's looking to make the minority elements of that more inclusive.

That can be a little bit scary for some employers, because sometimes they have employees or groupings within their organisation that are maybe foreign to them, maybe that they haven't come across them before, and they're almost afraid to raise the issue or speak to the employees or deal with it. You know, it's the like of I think we were talking previously and we were saying about if there was a new Polish employee in the office, it's almost heads down and no one talks about the fact that the person is Polish or from another country. And that at times the easiest thing to do is to engage with the employee and say, "Look, we'd all really love to learn about your home country, or we'd like to learn about your culture and things like that." So that can be incorporated in.

But the idea behind these diversion and inclusion councils is to look at the minorities within the workplace and to make it more inclusive. And traditionally what we're trying to do with these groups is that we're trying to address gaps in representation or inclusion for specific, sometimes demographic groups, including whether it's women, whether it's racial or ethnic diverse individuals, or again individuals with disabilities. What you can look at in relation to these things are its various dimensions like organisational level within your company or within your group, educational background, communication and management style, geographic location, and demographic groups.

So, it's all those sorts of things that we're looking at, but the key thing for these councils is that if you're going to put together a council within your organisation, there's no point having no diversity on your council. Your council must be diverse, and it's looking to have those members within your organisation on your council.

So, the members should mirror the diversity within the organisation is the key aspect of this. And really what you're looking to do is have the sort of variety of functions of the council to look at giving advice to senior leaders in the organisation in relation to adopting best practices for diversity and inclusion, how to make cultural, financial, and operational changes to better your diversity and inclusion within the workplace, and then to combat those issues themselves, equality of opportunity, representation, those sorts of ideas that really your workplace is becoming inclusional.

The question itself focuses on - is it okay to look at minority groups, and absolutely that's the point of this is to get an engagement happening and learn about the other traditions within your organisation and bring those along. Some of the ideas that I've come across with clients of mine is that and it sounds council, it sounds very formal. It sounds like very seriously everyone sitting around the table and discussing these issues. Yes, it's serious, but there can also be a fun aspect and it's about incorporation.

A lot of people will incorporate these sorts of diverse activities into their corporate responsibility. So whether it is having a team that will engage with adults that have learning difficulties and that's part of your corporate responsibility that you're sending some of your employees in a group to another group on the outside, and that's about engaging about learning about other people's cultures, their identity, their disabilities that they have. Get a better understanding of it so the next time that you're speaking to your colleague in work, you're doing it on an equal footing almost.

But other things that people have looked at is in Northern Ireland basis, like the whole St. Patrick's Day and around the 12th of July and getting discussions ongoing about those. Sometimes they'll use . . . visual aids they'll take their employees to plays that are ongoing, and they'll introduce it via film, or they will have cultural days in the office. And this is a thing that I'm aware of in Belfast here, where there is a very diverse community within the office where the employees are comfortable enough that they've done sort of cultural days where they say we're going to have a coffee morning and we'd like the food to come from this culture or background. And it's about learning about that and about getting inclusive with it.

Scott: Let’s hope the food goes with coffee.  Of course, you can also have specialists groups as well. You have the LGBT groups and so on . . .

Seamus: Yeah.

Scott: . . . within the bigger organisations, because they've got a sizable enough workforce.

Seamus: You see it year on year. I know there's a wee bit of controversy around the whole idea of pride, and maybe people think that's been hijacked and things like that. But certainly you see it an awful lot more. People have the lanyards with some of those organisations and things like that. So, it's just about incorporation, and I suppose it's about making those employees that are diverse feel welcome within your organisation.

Scott: Okay. Well, Legal-Island, I didn’t intend saying this but I will now.  At Legal-Island, we run and have run for three or four years now a diversity gala. And the next one is on the 3rd of April next year at the Titanic, and you can find details on our website if you want to click on that. I don't know if I'm allowed to say who some of the guests are, but there is a big winner when it comes when it comes to "X Factor." It's going to feature this time. So, it is diversity. It's someone who is diverse, doesn't say much. Doesn't say much, there's a clue of somebody that's coming.

Equal Opportunities Monitoring

We've had a little question on the chat box there:

Gathering monitoring forms isn't an issue with employees, but I'm finding it really difficult to get monitoring forms from candidates for vacancies, and it's well-nigh impossible to apply residuary rule due to the diversity of cultural and national backgrounds. How do we address this?

Seamus: Well, I think we talked about that was it the last podcast or the podcast before. There will be good advice on there if you want to go back through Legal-Island's channel in order to pull that down. But the advice in and around at that time was that where there's a refusal to fill out the form, that you can use various methods in order to make those associations and . . .

Scott: I think, Seamus, the problem here is that you can look at things like the school that somebody went when they're growing up.

Seamus: Yes.

Scott: That doesn't really mean much if they grew up in Mumbai, or they, in my case, grew up in Edinburgh type of thing. So, I think that's the difficulty. I think the system is just out of date.

Seamus: Yeah. I mean, I think you can only record the information that is available to you. So, I mean if you're aware of the background of the person or where they're from, you can certainly do your best and record what's on the form. But if you don't have the information, it's not possible to put the information on the form or file a full return do your best with it. Maybe it's also an aspect whenever you are going through that process that in case that there are issues that arise further down the line that you're not completing the process, that you're not filing the returns, that you maybe just keep a brief note. You don't need to make any identifiers to names and things like that, but you could just make a record to say that the person wasn't willing to return the form, complete the form, or give any information about the form.

Links to previous webinar which discussed monitoring:

https://www.legal-island.com/articles/uk/resources/webinar-recordings/2019/oct/employment-law-at-11-october-2019/

Consultative Ballots by Trade Unions

Scott: Okay. Let's move on to another subject now:

In relation to industrial relations queries, do you know if trade unions are entitled to hold consultative votes regarding any changes, to terms and conditions presumably, or can employers insist that unions undertake binding votes on any proposals put to their members?

Seamus: Well, the idea behind the consultative vote is that when . . . Essentially the short answer to the question is yes, I don't see any difficulty with the trade union working through consultative votes rather than having to undertake a secret ballot and things like that. It would be common practice for a trade union, if they're representing and they're acting on behalf of a workforce, that they have certain powers. They have certain given steps that they can take.

But one of the aspects is that when you're working through a negotiation between the trade union and the employer, that there are gentle kind of pushes that the union can make in order to try and encourage and bring the employer along. Now maybe that they're going back to the employer on a consultative basis to say can we get a general indication here, and these are like indicative votes and things like that.

So there's nothing in law that prevents the trade union from doing that. Certainly whenever you get to sort of an industrial action level, you're into then secret ballots and making sure that the trade union have the power and the authorisation . . .

Scott: They've got to follow various rules . . .

Seamus: Absolutely.

Scott: . . . notifying the employer that they're holding a ballot, give them adequate time to prepare. You've got to make sure that the lists are all up to date, all that kind of thing.

Seamus: Yeah.

Scott: But I think this question here is really just saying like the union has been negotiating with management, there's a deal on the table. They just want to make sure people are going to take it before they agree to it, because the unions would have the authority to agree on behalf of members normally, because they're recognised . . .

Seamus: They do.

Scott: . . . if they're recognised type of thing.

Seamus: Yes.

Scott: But I think it's always in the interest of the union to make sure that they can take the workforce with them.

Seamus: Yeah.

Scott: But it's interesting to management as well.

Seamus: No, no. No, absolutely. I mean, what you don't want happening is the union agreeing to something and then the workforce not being happy with it, because it puts you back to square one again and creates all sorts of difficulties.

So good practice would be that absolutely you would get some sort of confirmation, but certainly the union don't necessarily have to hold a secret ballot or anything in order to do that. They can do it indicatively.

Pregnancy and Maternity Rights

Scott: Okay. Let's move on to two or three issues here that have come in on pregnancy and maternity. So, the first one we have:

We have an employee who has been off for four years, or sorry, who's been an employee for four years, but during that time has had two pregnancies and has been off ill with related illness.  During this time, her role has changed due to the changes in process and introduction of automated systems. How protected are both the employee and the company in relation to making her redundant or confirming the changes in her role?

Seamus: Well, I mean, this question, it's a genuine question because the way that it set out is that we can see the justification automatically that they're saying that there has been changes in the role and the involvement of this automated system, which has changed the role around. So there's a genuineness to this, it doesn't seem to me from the question that the employer is just looking to shunt an employee out of the other job here on the basis that they're pregnant, which would obviously be or are on maternity leave, which would obviously be sort of direct discrimination there.

Obviously, whenever you're dealing with a pregnant employee or an employee that is off on maternity leave, the red flag is up. Be careful and be cautious. I mean, we've seen developments happen over the years, and even recently we have a recent Equality Commission back case that came through, which I think we'll touch on later on. But if you can see that they still . . . these are issues that are pertinent and still arise.

But just to cover off the basic position there is that women employees are entitled to return the same job after their period of maternity leave if they've been off for 26 weeks or less. So that's sort of the ordinary period of maternity leave. And the employee's pay and conditions must be the same or better if they're the employee and they're coming back from maternity leave.

Where they stretch into the additional period, the post-26 weeks, it can still be classed as unfair dismissal or discrimination if the employer doesn't allow the employee to return to work after the period of maternity leave or if the employer offers the employee a different job without it being justified.

So there always has to be those justifiable reasons, and that's the key point here. You can't just have a scenario where you're making a decision to say it's a result of the maternity, or this employee has had two children and there's another one down the line. We need to make a move here to get her out the door. That is going to be discriminative.

Scott: It's almost a "but for" test.

Seamus: Yes.

Scott: But for the maternity leave, would the job still be there? And in this case, they're saying no, it wouldn't.

Seamus: Yeah.

Scott: Things have changed.

Seamus: Yeah.

Scott: And it's unrelated to the maternity absence. Things have been going on. And had she been off on a sick or had it been a male who had been out, the same problems or the same issues would have come up.

Seamus: Yeah. Really the issue boils down to it's about consultation with the employee. It's about discussions with the employee. It is a bit strange that we're talking about a four-year period. It does seem to me that the employer has some knowledge of the changes in the role or the reduction of the role, and it maybe is only coming to a head at the point where the employee has been absent for a period and the employer has really noticed at that point, when the employee is out, but they have had a period of time here in order to try and deal with it.

Scott: You would be looking for evidence that they've actually contacted the employee and say, "Look, there are changes going on."

Seamus: Yes.

Scott: Or maybe using keeping in touch days. The employee, it shouldn't come as a surprise to any employee . . .

Seamus: No.

Scott: . . . that their job has changed over this period.

Seamus: Absolutely not. One of the issues is that if the employee is forgotten about, which happens on maternity leave, whether it's for other roles that have come up internally or whether it is redundancy, I have plenty of cases where the employer has come back at almost whenever you're at the complete end of the redundancy process and said, "Oh, we've forgotten about this employee that was on maternity leave."

It's about that, and also I don't think that you need to . . . yes, you need to be sensitive around there being the immediate period after the baby has been born, but where issues arise, you have an obligation and a duty to let the employee know and you have to engage and consult with the employee. If the employee chooses not to engage with you, that's fine. That's a matter for them. But there are those steps that the employer has to take.

But I just wanted to cover off the other things that an employer cannot offer an employee a different job whenever they come back from maternity leave, and just four points here really that:

1.  number one if the employee's job still exists, but they've given it to somebody else. It's not possible to do that.
2. Or where the employee's job would still exist had they not gone on maternity leave.
3. If the new job is offered, but it's not something that the employee can do, you need to be careful with that.
4. And also, if there's a new job available, but it's not the same terms or conditions or its worse conditions than the original job is as well.

So, I just wanted to flag that up and also maybe just briefly mention the case of Sefton Borough Council and Wainwright.  It's an EAT decision of 2014. This is the idea where there is alternative employment and just to flag up, that the employee on the protected period of the ordinary maternity leave would have priority in relation to obtaining any other role that's available. So, there is that protection built in also for those employees that are on maternity leave. You're always needing to consider redeployment on a redundancy, but just that those employees that are on maternity leave have that protection if they're on a period of ordinary maternity leave as well.

Scott: Okay. Thank you very much, Seamus. You're listening to Seamus McGranaghan from O'Reilly Stewart. I'm Scott Alexander. I'm from Legal-Island. We're looking at a number of questions that have been sent in over the last month from listeners, and you can do that through the website. You can also send them through the little chat box there that we have on your screen.

Just to let you know that this morning I sent out the weekly review of developments, and there was one place we had a late cancellation for the Annual Review at the Titanic next week. I don't know if that's gone. But if it is there and you want to go, you have to email Vanessa at legal-island.com, and she'll update you on the situation if you're interested in going to the Annual Review. Indeed, Seamus, you're going to be at one of the annual reviews, chairing the session on joining boards of management.

Seamus: Yeah, on board membership and sort of looking at it from a voluntary basis. So, I'll be there on the second of the reviews, which is going to be at the Crowne Plaza in November. So, it's a side session. It's one at the end of the day, but it certainly will be interesting and certainly for anybody that's looking to develop their CV or if they feel that they're at a stage in their career where they can give something back, if they're very interested in a specific type of charitable organisation or a third sector, it doesn't need to be third sector. It can be a public or a private board as well. There will be some helpful information during that session for anybody that wants to take it in.

Scott: Very good. I'm on the Governing Body of the Southern Regional College, and it's thoroughly enjoyable. And so, I recommend board membership for anybody. If you got the time and the ability, that's great.

So moving on but very closely related:

The Equality Commission has reported this week on another successful pregnancy discrimination case in which they supported the claimant. Does this case mean that it is not okay to terminate the contract of the temporary worker if they are pregnant even though the contract is at an end?

Seamus: I think the question, probably we received this question just as the case came in. The case was a number of weeks ago, just for clarity in case listeners think that there's been just another case there. But it's the case of, and I hope I'm saying this right, the Gruzdaite against McGrane Nurseries Ltd. This is a local case in our Industrial Tribunal. And essentially what one of the issues in the case was that it was argued that the employee was employed on a temporary basis and the employee was dismissed and had brought a claim on the basis of the fact that she was pregnant and notified her employer.

So very interesting factual background to the case. All these cases, as you know you can get good reviews of these cases on Legal-Island. You can also get good reviews generally on a number of the websites. Some of the solicitor firms will also have done reviews. But you can also pick up the case from the Tribunal's website and just so that everyone knows that there is a publication section on Tribunal's website, and then there's also a case section where you can go in. You put the name of the claimant and the respondent in, and there's lots of fields to complete and it pulls back the case for you. You can take a read at it yourself.

But this was a case where the claimant and her husband had moved to Northern Ireland as the claimant's brother had been working in the respondent company. And they were seasonal workers for a plant wholesale company, was the background of their employment, and had signed a seasonal contract, which was blank, and it didn't have a start or an end date. And they were never informed in fact that it was a seasonal contract. So, their consideration was that this was just a full-time, permanent job.

The claimant had actually informed her employer that she was pregnant on the 14th of September 2018, and then from that point she experienced a change in their attitude, and particularly there's a lot of discussion in and around the evidence that was given at the time in relation to ante-natal appointments that she was attending. She notified the company that she had to attend ante-natal classes or appointments that she was going to, and they denied that they had any knowledge of them. But in actual fact when the evidence came out that they were aware of them.

She was dismissed at 20 weeks, and it had an adverse impact on her health. And interestingly, the claimant's husband was also dismissed, and the Tribunal did say that that was a key aggravating factor. And the case in the Tribunal awarded substantial damages in this case. It was about £28,000 that was awarded.

The case was fact specific in the sense that the claimant didn't know that she was a seasonal worker, so her position was that she didn't know that she was a temporary worker. She also didn't know the end date of her contract. And that other comparable seasonal workers were not dismissed, and that's the key part here were to say, "Well, why was I dismissed and why were they not?"

It was essentially found that the claimant had been selected to be dismissed on the basis of her pregnancy and that that amounted to discrimination, and this issues around the contract was specific.

That said, the question here is asking us whether or not, as a result of this case, it's okay to terminate at the end of the contract. I mean, I think ultimately a temporary contract is usually put in place to cover a specific piece of work or a specific period of cover. Where the contract comes to a natural end at the end of the contractual date and there's a clear reason for it coming to an end, I don't have any difficulties with a dismissal happening.

Scott: Whether they're pregnant or not.

Seamus: Whether they're pregnant or not. But where the employer is making a decision to say I'm not going to renew the contract, or if there was a clause in the contract that said that the employer could provide a month's notice in order to terminate, and that's specifically done as a result of the pregnancy, obviously then it's discriminative. So it will be dependent on the circumstances of the case. But you should tread cautiously, and it's always one of those aspects where if I'm providing advice to a client, unless the client will say, "But the employee is pregnant, and they're just going to take a case against me anyway," I'll say, "Well, but let's look at the circumstances of it. Why are we bringing an end to the case?"

It's working through with the client to get to the genuine reason. If the genuine reason is this was a temporary post for say nine months and it was to cover somebody that was taking maternity leave and that person has now returned, the job is at end, the pregnancy is unrelated. And again, just to protect yourself that you're making sure that you're notifying the employee of the reason for the termination of the contract, whether it’s at its end, or before if you've got a notice period in it . . .

Scott: You'd have to have a meeting as well under the 123 procedures.

Seamus: Absolutely. Following that procedure and making sure that everything is done in writing. The majority of these cases that come through is because there has been no process applied. It raises scepticism for the employee, and second of all that there's nothing in writing. And even if you have a genuine circumstance and have something recorded in writing, when you get to the Tribunal, it makes you look as if you haven't followed a procedure and that it hasn't been fair, and it just puts the antenna up. So, it's always best to take the approach I think follow the statutory procedure and keep everything in writing.

Scott: Okay. Thank you very much, Seamus. You're listening to Seamus McGranaghan from O'Reilly Stewart. I'm Scott Alexander from Legal-Island.

And continuing our maternity and pregnancy related questions that came in, we've got quite a few:

What if any legal implications are there in having a policy of paying a bonus to females returning from maternity leave as a retention tool to increase the number of female employees in a male-dominated industry?

So I suppose the background here is there aren't that many females. They're losing them as they go off and have children. They're trying to keep them there, and so they're saying, "Look, we'll keep the bonus payments going." And if you come back, it's almost like a golden handshake for coming back. Men don't get it, presumably because they're not off on maternity leave, and they haven't had the absence. But there may be an issue here around, well, what if they took paternity leave? Would they also be entitled to a bonus? So, I think that's what the background is.

Seamus: Yes, I think that's what it is. I mean, I think ultimately again there's a justifiable stance here on the employer, and there's an argument that there's an onus on the employer as well to ensure that again going back to making sure that you have a diverse workforce as well. So what they're saying is, look, rather than you not being paid your bonus as a result of your maternity period, we will pay it to you, and the hope is that that will encourage the woman to come back to work. I don't have any difficulties with it in the sense that I struggle to think of the male comparator bringing a similar claim on the basis that . . .

Scott: It's only women that get pregnant.

Seamus: Yeah, and the male is not losing in that sense. But interestingly, as the law has developed, obviously we've got this idea of the shared maternity period now, where potentially a woman comes back to work after a period of three months and dad then takes it. And then is there an argument then if dad loses his bonus? So that's interesting. It's developing.

A recent case there of Ali and Capita Customer Services Limited. Now this was a case in England that has gone through the ranks and has ended up at Court of Appeal stage. And essentially, the court has said that it's not discriminatory to pay men on shared parental leave less than women on the maternity side of things. So, they've clearly said that it's not discriminatory if the paternity leave transfers across, because again it's about protecting the woman in that sense. But interestingly, that case has been appealed to the Supreme Court.

There was two cases actually, two EAT cases that were similar, and they were dealt with together at the Court of Appeal, and they're both being appealed to the Supreme Court. So, it's worthwhile watching out for that. I think this is certainly a developing area, and you can imagine the complexities in and around this as well. I mean, you might feel as on a family basis, if your partner and the male takes the shared maternity leave and then they lose out on it, are they being punished on a family basis rather than something else?

Scott: It's more the fact that it's a disincentive for men to take responsibility and share parental leave . . .

Seamus: Yes.

Scott: . . . because they end up getting less money than a female in a similar circumstance.

Seamus: Exactly.

Scott: So I can kind of understand that. I know a lot of public sector organisations have beefed those things up and said, "Okay, we're going to maintain maternity pay which is a similar thing. We'll enhance maternity pay. We'll also enhance paternity pay for men . . .

Seamus: As well, yeah.

Scott: . . . who are taking the time in order to even things up." That's on a slightly different policy reason, if you like, rather than just protecting the females. Males taking shared responsibility.

Seamus: Yeah. Just if anybody is interested, I'll just maybe mention that that other case is Hextall and the Chief Constable of Leicestershire Police.  But it's a case of a slightly different vein, but it's worthwhile a read in terms of really getting a good grasp and understanding of what these issues are going to come down the line.

Scott: Okay. Really quick question then on the chat box and the question box here.

Holiday Entitlement

If we have the 26th, 27th, 30th, and 31st December as closed days, where employees are on holiday, and we now change to working days, do we have to pay overtime?

I thought when that first question came in there, do we have to pay average overtime for the holidays, and the answer is yes. But this is actually they’ve changed the process there used to be a closure . . .

Seamus: Closure day and now they're opening the business.

Scott: well, presumably you need agreement to change them or some kind of contractual entitlement to do it. But assuming they have, they would be public holidays. There's no statutory right to enhancement on a public holiday. But you won't get anyone working them otherwise.

Seamus: No. I don't think . . . the dates were the 26th . . .

Scott: 26th.

Seamus: That's Boxing Day. So the 27th, probably not a public holiday.

Scott: The 30th and the 31st, but they were closed for the . . .

Seamus: They were closed. Yes.

Scott: …they were closed for this organisation.

Seamus: Oh, they were closed. Yes. Okay. Yeah, I mean, I think you go back to your contract and see what the contract says, and then its about engagement and consultation with your staff to discuss the matter with them and try to get agreement.

Scott: Yeah. There will be nothing in there other than there being Boxing Day that would see it as or likely have it in the contract that you could get an enhanced payment.

Seamus: Yeah.

Scott: But if you used to always close, you're not going to get many people working it unless you add an incentive.

Seamus: Yeah.

Scott: And so, it becomes a practical thing rather than a legal issue.

Seamus: I think that's right, and I think in terms of the problem being then that once you set the wheels in motion of saying that that is an enhanced day, you're kind of stuck with it then year on year unless you can get some sort of alternative agreement with the staff about the days.

Scott: Okay. Well, whoever sent that one in, and I know who that is, but Seamus doesn't, whoever sent that one in, if you want to get in touch with Seamus, you can. You can have a word with him and come to a reasonable agreement over how he deals with that.

Covert Recordings

Now a couple questions. Hopefully, we'll get through them:

We recently updated our disciplinary policy to include, amongst other updates, a penalty of gross misconduct for employees who covertly record meetings. Is this lawful?

Maybe should they should have asked that before they updated their policies, but there you go, Seamus. Is it lawful?

Seamus: Yeah. Well, it's one of those issues that is interesting because there are so many more devices now. There are so many more ways for people to record conversations. And the idea is always ICO advice is that if you're going to record in a meeting, you get the permission. You inform someone that you're intending to do it, and you get their permission to do it.

A key case in relation to this one is the case of Phoenix House Limited against Stockman 2019. I'll do my own little plug here and say that in addition to the case being on Legal-Island's website, on my website we have a good review of this as well, on the O'Reilly Stewart website if anybody wants to have a look at it.

But the case itself related to an employee who had recorded a meeting at the time, and then the case went through to the EAT and they gave some really helpful advice in relation to the case. So, I think I'll maybe just cover off what the advice was that they said.

So, the EAT ruled that it may or may not be a disciplinary offense. So, the first thing that we need to look at is I think that you do need to err on the side of caution in terms of putting it into your contract as a case of gross misconduct.

I think that what you can say is that it may be gross misconduct. They said that it was a good employment practice for an employee or an employer to say if there's any intention to record a meeting, and that the relevant factors to the covert recording of a meeting were: What was the purpose of the recording, and what was the extent of the employee's blameworthiness? What was being recorded, and what is the attitude of the employer?

So I don't think that it's a straightforward matter where you can just say anybody that takes a covert recording in a disciplinary meeting or a grievance meeting or any other type of meeting is gross misconduct and you're at risk of dismissal.

I think that you're going to have to look at the very specific circumstances of the case. You're going to have to balance it on both sides. Was the employer such a difficult employer and such a bad employer that the employee felt that they had no other alternative but to record the meeting because they needed proof of what was going on or what was happening? Equally, was the employee acting in bad faith in recording the meeting by not being clear about their intentions if there was no sort of controversy around the meeting? Or if the employee set out to entrap the employer and wanted it recorded in some type of way. So . . .

Scott: You sometimes find in the procedures now that they'll say that there will be no recording, or it is not permitted. But again, if that’s not in there it's difficult to say it justifies gross misconduct . . .

Seamus: No.

Scott: . . . when you haven't said in your policy that it's not allowable.

Seamus: Yeah. I've mentioned I think a couple of times now in these podcasts that I have direct experience where there have been recordings that have surreptitiously been taken and there's been no notice that they're being recorded and certainly no permission for them, and they've turned up very late in the day, in advance of the hearing at the Tribunal.  And the Tribunal will also apply these kind of thought processes as to whether or not they will take the recording and listen to it.

In one of the cases that I had, specific circumstances we needed the recording because the employer was so bad and was very threatening and physically threatening as well as threats to the employee's job, and the employee felt that they had no alternative but to take the recording.  We gave argument at the Tribunal. The Tribunal then agreed to listen and permitted the recording and listened to it. We wouldn't have won the case without it, and it was direct evidence. But that's slightly different to what the question is being asked here.

I think that the bottom line is obviously you can't predetermine any outcome in terms of a disciplinary, and you're going to have to look at the specific circumstances of the case in order to make a decision as to whether it's at a level of gross misconduct or not.

The key issue is it always comes down to the trust and confidence. If by the employee's actions there's a clear breach of the trust and confidence and that it's irreparable, you're probably at the point then of gross misconduct and dismissal.

Scott: Yeah. In that case here, the Employment Appeal Tribunal said we consider as good employment practice for an employee or an employer to say if there's any intention to record a meeting, save in the most pressing circumstances, and it will generally amount to misconduct not to do so. So, what they're saying is that they said misconduct. They didn't say gross misconduct. So, this employer is on shaky ground if they go straight to this is up there with stealing.

Seamus: Yeah.

Data Protection Matters – Disclosing Witness Statements

Scott: Okay. A final question not unrelated and hopefully we'll get through this just before we finish. It's on GDPR:

What consideration should we make when disclosing witness statements and evidence as part of a formal disciplinary or grievance process? How do we find a balance between protecting one individual's right to privacy and the other's right to know the case against them, so they have a right to a fair hearing? So how do you balance that?

Seamus: That's the aspect of the fair principles of law here. But I think, look, the issue has to be that GDPR does provide certain protections, and the idea here is that someone has given or many people have given witness statements, and they maybe don't want to be identified or the employer doesn't want to put the employee in a position where they're going to be identified and create an issue.

Ultimately, I think that the position is that you are processing this information on a legitimate basis. I think that there is an ability for the employer to disclose the information, and the automatic reaction would be, look, listen if we're going to put disciplinary charges against an employee, the employee needs to be clear about what the allegations are against them and needs to be provided with the evidence so that they can mount their defence and they'll be given a fair opportunity and a fair crack at the whip in order to defend themselves.

Those are the general principles that we go on. And tribunal cases as well, you go down to tribunal, you haven't provided all of the evidence that you've relied upon in arriving at your decision, and you're in difficulties.

That said, you have to balance it off with these aspects of GDPR. And also if you're looking at statements, say that it's a very serious issue that has arisen, say it's one of theft or say that you're aware that the employee who had been disciplined would be maybe known to be heavy-handed or would be maybe part of a gang outside of work and things like that, it may be that the employer has to weigh it up and say, "Well, on this occasion, it's not safe for me to just hand over the witness statements as they are." And the alternatives are that you look at redacting the witness statements, maybe taking out some of the indicators in the statement that would give the identity of a third party or the person that has provided the witness statement. You can edit the statement. They can see the identity of the witnesses. Or the alternative is that you take the witness statements and you prepare a summary of them and provide them to the employee in that way so that you do your best in order to ensure that the employee has as much information as you can provide on a safe basis.

So, there are alternatives to just simply not providing it or providing it, but you need to balance it up very carefully, and again it's going to be case sensitive.

Scott: Okay. Well, there's nothing in the GDPR or the Data Protection Act that says just because you're mentioned in a statement you have the right to block it. That doesn't happen.

Seamus: No.

Scott: It's not that society and business all collapses because of the GDPR.

Seamus: And one sort of final point. I know we're tight on time here, but just one final point in relation to this. Ultimately, if you get to a Tribunal hearing, you're going to have to disclose all the documentation in any event.

Scott: Okay. Thank you very much to Seamus McGranaghan there. Thank you very much for listening. There was one question we didn't get around to. We'll hold it back to the next one. It's not off beam when we're talking about maybe Christmas parties because of the blank holiday the calculations for part-timers. There is a big case, Harpur Trust and Brazel, that Mark McAllister will be dealing with at the Annual Reviews of Employment Law if you can get along to those.

I got a note earlier from one of the marketing team that that place next week, on Thursday at the Titanic is still available, but you've got to email Vanessa@legal-island.com to get it.

Thanks very much, everybody, for listening. If you have any other questions, fire them into Rolanda or me, and we will deal with them next time on the 6th of December. Hope to see you then. Take care, folks.