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Phone recording

Phone recording

Whilst trying to sort out an employee dispute between clinet and his employee (i know, stupid me!) the employee recorded the conversation that took place between us, ie: myself and the employee. I was only acting as an intermiediary to solve the employee dispute. Now employee has put in tribunal case for umfair dismissal and threating to use our recorded conversation as an evidence.

I only acted in personal capacity to get them to reach an agreement and now have been drwan into this unwillingly. Where do i stand?

Many thanks in advance

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04th May 2012 14:03

in all probablity you are screwed

You need a lawyer to tell you exactly, but in all probablity you are screwed.

Indeed, you are so screwed, I would tell your PI people now, without delay and get a lawyer.

If the client gets sued for unfair dismissal, I guarantee you, the client will sue you for negligence.

To ruin your day even more, your professional body will then probably disapline you for undertaking work for which you were not competent (you're not an HR lawyer are you?) and bringing the profession into disrepute.

Steve

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04th May 2012 14:16

Have a good weekend!!

I wonder if it makes any difference whether the employee told you he/she was recording the telephone conversation.

I suppose it also depends on what you said in that conversation.

The employer already knew you were going to speak to the employee so hopefully you didn't say anything more than the employer (your client) would have expected you to have said.

As said above ... one for the lawyers!!

Seriously though, good luck. In trying to do a favour, you've probably found yourself in this situation before you realised what the consequences could be.

 

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04th May 2012 14:20

Recording calls

Having been in a situation with telephone calls, provided one party concents to the recording, the recording is perfectly acceptable as evidence.

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04th May 2012 14:23

Occupational Health..

..is the area of under-appreciated expertise in Employment "Law".  It is PROCEDURES that are paramount in dismissal cases.

Rather than make the lawyers rich, any Employment Dispute SHOULD be routed through a decent advisor.  OK so my wife is one.  But her fees are small beer as compared to Lawyers, and Tribunal awards.  So BEWARE venturing into areas that are NOT OUR DOMAIN.

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04th May 2012 14:32

What is it that was said that worries you?

What did you or the client say during this conversation that worries you so much?

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By occca
04th May 2012 14:40

What Roland says

What was it that you said that concerns you?

Were you just passing on information or did you offer an opinion / advice?

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By A_non
04th May 2012 14:54

What i said was....

that it is no good arguing and that he is offering you so much so take it and go. But then he kept telling me about how unfairly he was treated etc etc, i kinda symthesied with him..thats all. cant remember bad mouting client ..

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By occca
04th May 2012 15:01

Agree with others

Contact PI insurance and a solicitor

Good luck 

 

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04th May 2012 19:04

But.....
And I'm willing to be corrected here, isn't it illegal to record a conversation without the other persons knowledge? That point should be something you can easily check without a lawyer.

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04th May 2012 19:23

@ wockywocky

As I said, I have some personal experience of this. To quote from the legal guidance I hold: 

"in civil cases judges take a pragmatic approach that if the information is already disclosed and it is highly relevant, then it will be admitted – but then you are stuck with it for better or worse..."

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By Hansa
04th May 2012 20:16

Not illegal, but cannot normally be used

Following on from Wockywocky's comment, I don't think the issue is one of legality, but rather whether a recording of a conversation can be used without the knowledge and implicit consent of both parties.  Unless "public Interest" can be shown the general rule is that deceptively obtained recordings should not be admissible in Tribunals.

From the later comments by the OP it would seem that it was arguable that he acted as an honest broker (a) he recommended the offer on the pragmatic basis that it was "so much" (b) he sympathised with the employee's complaints.  However I think he should seek advice on the particular issue as to whether the alleged recording (does he know it actually exists?) can be called in evidence.  He also claims to have been acting in a personal capacity (this might be evidenced - or otherwise) by the location of the meeting.  If in his office the difficulties increase

All in all I think the OP is not in nearly as much danger as other posters have suggested (At worst it seems he was the employer's agent in his personal capacity as he has not suggested that he claimed to be acting as an independent arbitrator or professional advisor). Much would depend on how the meeting was set up or introduced.

 

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04th May 2012 20:52

I looked into this a while ago

We installed a recorder, wholly for internal use, but wondered if it would help us against false claims and accusations (I was thinking of Albert Camus at the time).

I found lots of cases where secret recordings could be admissible in court. Here is a link to one of them.

http://www.ryanlaw.co.uk/new_page_2.htm

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05th May 2012 13:20

Opinion on Employment Law in such meetings:

At the meeting, did you have "terms and Conditions" that were to apply?

The meeting should have been held as a  "without prejudice meeting" - as this is a term used in Employment Law. 

That way, nothing said at the meeting can be assumed or be taken as part of evidence in a Tribunal.  

 

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05th May 2012 13:48

The danger

The main danger I would have thought is that the OP will in due course be sued by the employer (who is the OP's client) for unwittingly aggravating the situation resulting in the claim made by the employee against the employer.

So it is something that might result in the OP making a claim on his professional indemnity policy, in my view, if the employee successfully claims against the employer.

David

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05th May 2012 15:30

Paranoid

The OP seems a bit paranoid. He can't remember saying anything wrong or being critical of the client. If he did say anything critical of the client it may just have been to express empathy and to encourage a settlement.

My stepdaughter had a case against an employer and she recorded a meeting discretely and there were various rules to whether it could be played to the court but usually it can and anyway the transcript can be submitted.

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By dstickl
05th May 2012 16:00

"Without prejudice save as to costs" is a useful phrase to ...

"Without prejudice save as to costs" might be a phrase worth considering trotting out early on [and in a closing summary if you can] in telephone discussion(s) as described by OP! 

However, whilst the old english proverb of "No good deed goes unpunished ... " might apply to OP here, IF OP had kept his cool during the call THEN a sensible judge may rule that OP did no material harm anyway, and may rule accordingly.

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06th May 2012 11:26

Do Nothing

You are not screwed. You don't need to tell your insurer because there is as yet no claim against you. You don't need to appoint a solicitor yet because, again, there is no claim against you and to do so you'd be paying for hypothetical advice on an as yet unknown situation.

It seems that you were acting as agent to your client presumably with his knowledge? You don't say whether the dismissal was actual or constructive but either way the Tribunal will make a decision in due course. You don't say whether your client made any payment to compensate for the termination of employment but if he did that will clearly be considered by the Tribunal.

The taped telephone recording may or may not be admissible but either way I fail to see how your client could make a successful claim against you for any losses he incurs at the Tribunal.

 

 

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By chatman
07th May 2012 10:36

Transcript Allowed in Tribunal
I attended a friend's work disciplinary meeting and recorded it without warning the employer. The transcript was allowed as evidence in the employment tribunal hearing. I understand you are allowed to record your own conversations without warning anyone.

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08th May 2012 11:39

@chatman

If you were there in person recording it, you would not breaching your licence under the Telecommunications Act.

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By chatman
Tornado
08th May 2012 11:54

@daveforbes

daveforbes wrote:
If you were there in person recording it, you would not breaching your licence under the Telecommunications Act.

What licence Dave?

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