Employer Guides: Should disciplinary and grievance meetings be recorded?

Well obviously, the answer is no isn’t it? Your policies probably say so. Why would you let that happen anyway? It will make everyone present feel more nervous and uncomfortable; you don’t know what might inadvertently come out at the meeting that could be used against you in future; a transcript of the recording might not be interpreted correctly, particularly if excerpts are used and the context is lost and, you don’t want the recording ending up on YouTube! All these concerns are perfectly logical and legitimate, but for one problem…

…It happens all the time
Even if you have a policy saying it should not. Even if you have expressly told the employee in written correspondence that recording is forbidden. Even if you ask the employee at the start of the meeting and they solemnly confirm that they are not. Believe me, it still does.
And, just because you have a policy saying that it should not happen… And the employee did not have your consent… And it might breach data protection law and your fundamental human rights… That does not necessarily stop an employment tribunal judge, focussed on ensuring that justice is done, ruling: “I’ll hear the recording” or “The transcript is admissible”.

And it doesn’t just happen when the employee is present
Ever more frequently employees are leaving their phones in rooms where meetings have taken place in the hope of recording the conversation that follows the meeting and obtaining a silver bullet of information. This material is less likely to be admissible in a legal setting, but there are still some instances where it has been permitted. Even if it is not admissible in a court or tribunal, the employee will have gained valuable intelligence on your decision making process which could be used against you.
So, with this in mind, should the mind-set that a contemporaneous and accurate record of the meeting be avoided at all costs, be adjusted for the age where making a recording is as easy as pushing a button on a device almost everyone has in their pocket?

Pros v Cons

So we’ve mentioned a few of the negatives, but are there any positives?
• There will be no dispute over what was actually said at the meeting. Time will not need to be spent writing up notes and arguing with the employee over the specifics of what was actually said (which may or may not be relevant). If the matter did end up in an employment tribunal, you would still need to make a transcript of the recording, but hopefully these occurrences should be rare. There are now many companies offering relatively cheap transcribing services that could be used in these instances.
• If the meeting is being recorded in the full knowledge of everyone present, it is less likely that you will let something slip out that you should not have said and, if it does, you will most likely qualify and explain yourself. This should promote high standards of conduct and fairness which should hopefully, in turn, reduce the prospect of you ending up in an employment tribunal.
• If you are ever unfortunate enough to find yourself in an employment tribunal, your open approach is likely to reflect well on you and enhance your credibility in the eyes of an employment judge or panel.

5 Top Tips

  1. Consider your approach on a case-by-case basis. In particular consider the character and views of the employee, the subject of the meeting and any special circumstances. If the employee is disabled, there may be legitimate reasons for allowing the recording to take place in any event.
  2. If you decide to go ahead and record the meeting, record on two devices. This should appease any concerns that the recording may be doctored afterwards. Always ensure that the employee is aware of the recording and provides their written consent. Expressly stipulate that the recording is property of the business and should be treated in the same way as all other confidential business information.
  3. If you (or the employee) are not comfortable with recording, get a good note taker. Let the employee read the minutes there and then and sign to say that they agree. If the minutes are illegible, write them up immediately, and only write exactly what is written (even if it does not make sense). Do not embellish, adjust or write what you meant to say, no matter how tempting it might be. This is only likely to cause you credibility issues if the matter ended up before a judge. Make clear to the employee in all correspondence that the meeting should not be recorded and any attempt to do so will be classed as a disciplinary offence, do not allow coats in the room and expressly ask the employee at the outset if they are recording the meeting.
  4. Always be mindful that you could be being recorded regardless of your stance on the issue. Do not have follow up discussions in the same room.
  5. Once you have decided your practice to be adopted, check that your policies reflect this and update if necessary.

Further information
If you would like more information, advice or staff training please contact Melanie Rowe at Murrell Associates on 01872 227006 or by email at melanie.rowe@murrellassociates.co.uk.

Autumn Breakfast Seminar

Following on from our popular spring breakfast seminar, our next breakfast seminar takes place in September and this time will focus on legal aspects around commercial property development.

Date: Wednesday 18th September 2019
Times: Breakfast from 8.15am, seminar from 8.45am, close at 10am
Location: Epiphany House, Truro, TR1 3DR
Parking: Free parking is available at the venue
Booking via Eventbrite: Click here to book

Jenny Harbord, Partner and commercial property specialist, will speak about the most heavily negotiated aspects of buying and selling land for development, from the point of view of both landowner and developer.

Henry Maples, Partner and corporate law specialist with Murrell Associates, will discuss implications of development projects which involve joint ventures as well as shareholding structures for property development companies.

Buying and selling a small business: What to expect and how to prepare

Whether you are selling a business that you have developed and worked hard at, or you are embarking on a new venture or lifestyle change, you should make sure that you are fully prepared and protected.
Most small business transfers involve the sale of leasehold or freehold property, fixtures and fittings and also the goodwill of the business plus stock. Whether you are buying or selling, being aware of the various issues will help to ensure that the transaction runs smoothly from beginning to end.

Getting the right agent and heads of terms
When you decide to sell your business, choose an agent who is experienced in valuing your type of business, and who understands the business which you are selling. You can then be comfortable that you are getting the best price for the time and money that you have invested in your business.
A good agent will also ensure that clear and comprehensive heads of terms are settled at the outset, to include any specific arrangements that have been agreed. This saves time, money and misunderstanding as the transaction progresses.

Do you need an accountant?
The advice of an accountant can be invaluable to buyers and sellers alike. An accountant can advise on the most efficient way to apportion the purchase price between property, fixtures and fittings, and goodwill. Capital allowances and VAT are also likely to be relevant, not to mention advice on whether to use a company vehicle to purchase the assets of the business. Well organised sellers will ensure that a complete set of accounts are available for potential purchasers to review, and careful buyers will ask their accountant to review those accounts before they commit.
Solicitors and accountants often work closely together in business transfers and this can save time and money in the future.

Preparation is key
If you are selling your business, there are many things you can do in advance to help the transaction run smoothly, and aid the due diligence process. The buyer’s solicitor will request copies of the records relating to the business including leases, insurance policies, supplier contracts, customer contracts and bookings, licences to include premises licences, outside seating licences, planning permissions, and also evidence of rates, utilities and outgoings for the property. They will also request sight of fire safety records, food hygiene records and any other maintenance records. Employees also need to be considered, and the buyer’s solicitor will request information relating to any employees to be transferred under the TUPE Regulations, to include details relating to length of employment, contracts, salaries and pension arrangements.
If the property is leasehold, the seller might want to consider obtaining the landlord’s agreement in principle to the assignment of the lease at an early stage. The landlord may require references but they cannot unreasonably withhold their consent to the assignment. The outgoing tenant will usually be responsible for the landlord’s legal fees but this can be open to negotiation with the buyer.

What happens next?
Once heads of terms are agreed, the parties will instruct their solicitors to manage the process of buying and selling. The buyer’s solicitor will carry out relevant property searches, title checks and raise standard commercial property enquiries. They will also raise due diligence enquiries relating to the operation and management of the business and this is where the preparation mentioned previously comes into its own.
The buyer’s solicitor will prepare the first draft of the sale and purchase contract, a deed of assignment of goodwill and report on the property title, search results, and due diligence investigations. The solicitor’s report may well raise further questions or concerns for the buyer which will need to be addressed.
If the purchase is being funded by way of bank finance and the property will be used as security, the buyer’s solicitor will usually be instructed to act for the lender. They will be required to report to the lender on any issues that may affect whether or not the property is good security.
Sometimes a less experienced buyer may want to spend some time shadowing the seller so that they can hit the ground running on completion. Sellers are often willing to agree to this on the basis that the shadowing takes place after exchange of contracts, and before completion. That way, the parties are contractually committed to completion of the sale and purchase, and the seller doesn’t risk the buyer changing its mind after a busy few days in the kitchen!

We are a proactive, commercial but friendly team of commercial property lawyers, experienced in acting for buyers and sellers of small businesses. We take the time to fully understand our clients’ business needs and work closely with team members in our corporate team to provide a wrap-around commercial service to clients.

Get in touch
If you would like to discuss an issue relating to buying or selling a business, please get in touch by emailing tamsin.mann@murrellassociates.co.uk or call 01872 226900.