Nervous about attending a workplace meeting?

.

This webpage outlines the steps to take when invited by your employer to attend a grievance meeting, disciplinary hearing, capability meeting, sickness absence meeting or performance improvement plan.

.

Covert Recordings Workplace UK:

.

With the advent of modern technology, it is now easier than ever to record meetings on your i-phone or similar device. This can and will likely give you the upper hand. I can state as a matter of fact that very few clients who have attended a grievance, performance, capability, or disciplinary hearing will receive accurate minutes of the meeting they have attended. In fact, the majority of the time the employer will deliberately leave out the important parts of what you say.

The dilemma is whether or not to record the meeting or hearing.

Personally, I would always record, and did so surreptitiously without my employers’ knowledge.

This requires preparation. The very first thing you need to do is read the grievance and disciplinary policies and procedures to see if recording meetings or hearings would amount to gross misconduct.

However, given recent cases in the Employment Tribunal, employers are being told by their Legal Departments to update their policies and procedures to forbid the recording of Grievance, Performance, Capability & Disciplinary meetings / hearings.

As such, you will need to determine if your employer’s grievance / disciplinary policy and procedures forms a part of your contract of employment or if the policies are contractually binding. If you are caught making a covert recording, you could be dismissed for ‘gross misconduct’. The employer could argue that you have acted in a manner, which was calculated to breach the implied term of mutual trust and confidence. However, I don’t personally believe the employer would have much traction making the aforementioned argument.

In the authority of Phoenix House Limited v Mrs Tatiana Stockman UKEAT/0058/18/OO (July 2019) the Employment Appeal Tribunal says that the recording must not be made with the purpose of “entrapment or intended entrapment”. Herewith follows paragraphs 77 to 80 from the Employment Appeal Tribunals judgement:

77. There was a time when an employee – or for that matter an employer – had to go to a great deal of trouble to record a meeting covertly. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. But in our judgment times have changed. Most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on. In our collective experience it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere.

78. We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation. There may, as Mr Milsom recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee’s blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change.

79. That said, we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. It may be better to agree the outcome at the end. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed.

80. It follows from what we have said that the ET was not bound to approach its task on the basis that there was a breach of the implied term of trust and confidence. It was entitled, as it did, to make an assessment of the circumstances. It found that the Claimant had not recorded the meeting with the intention of entrapment. The Claimant recorded a single meeting concerned with her own position rather than the confidential information of the business or other individuals.”

Thus, if you suffer from asthma, migraines, cancer, anxiety, depression, diabetes, dyslexia, autism, CFS, RSI, ADHD, asperges or any other mental or physical impairment, which impairment makes you feel tired and/or causes diminished cognitive function or impairs your thought processes, then you could quite successfully argue that it was a ‘reasonable adjustment’ in accordance with s.39(5) of The Equality Act 2010, to allow you to record the meeting / hearing.

In fact, the employer has a positive duty to take ‘affirmative action’ for employees with a disability or impairment as held in the authority of Wolfe v North Middlesex University Hospital NHS Trust UKEAT/0065/14/MC, (4 June 2015 / Judgment handed down on 29 September 2015) at paragraphs 29 & 43:

“The performance of the duty to make reasonable adjustments may require the employer, when making adjustments, to treat a disabled person who is at a substantial disadvantage in comparison with others in the same employment in this position more favourably to remove to the disadvantage that is attributable to the disability.”

“The obligation was on the Respondent, which appears not to have appreciated that its duty might require it to treat the Claimant more favourably than those not disabled”

That way, if the employer subjects you to a disciplinary for making a covert recording, you could raise a new grievance for ‘discrimination on protected grounds of disability’. If you are subjected to a disciplinary for making a covert recording, reach out to us.

Below are a number of case authorities, which you can Google to see for yourself, that the Employment Tribunal (whilst finding the practice of covert recordings ‘distasteful’) has allowed secret recordings to be admitted in evidence at the Employment Tribunal:

• Punjab National Bank (International) Ltd and others v Gosain (UKEAT/0003/14)
• Vaughan v London Borough of Lewisham UKEAT/0534/12;
• Chairman & Governors of Amwell View School v Mrs C Dogherty UKEAT/0243/06

The Employment Tribunal realises that sometimes in order to get to the very ‘root’ of the evil of discrimination, (Jones v Tower Boot) it will sometimes need to hear evidence whereby that evidence (covert recordings) supports the claimant’s position that the respondent has acted in a discriminatory manner by concealing the torts of the Company, its officers, servants, agents and employees’.

Thus, it may be worth recording a meeting / hearing to have evidence to hand, which provides you and the Employment Tribunal with concrete proof that your employer has been anything but reasonable in allowing the truth to come out of the Grievance, Capability, Performance or Disciplinary Hearing.

In my own personal opinion, I would always record any meetings / hearings and 1-2-1’s. A picture paints a thousand words. I previously videoed and audio recorded my line manager sexually harassing me on my mobile telephone. As such, I had all the evidence to hand before invoking the grievance procedures.

Needless to say, when my employer had concluded the grievance investigation, my employer alleged I had not been sexually harassed. However, during the Appeal Hearing, I produced the audio and video recordings of my line manager pushing her breasts into me and pushing her groin against my thigh.

Thus, my line manager’s habitual proclivity to sexually harass me was exposed once and for all to see, and much to her embarrassment within the Appeal Hearing, she burst into tears and fled the room in front of the Managing Director. Hand on my heart, I was in the ACAS Office later that week signing a settlement agreement (COT3) with my employer, and in receipt of a cheque for a tidy some due to ‘injury to my feelings’ as the victim recipient of sexual harassment.

So – do I condone making covert recordings? The answer is no. However, is making secret recordings a necessary evil? The answer is (in my own opinion) undoubtedly yes.

Ultimately, making covert recordings is a personal decision.

Employment Barrister Daniel Barnett has also outlined a podcast regarding the legality of making covert recordings. Scroll to 5:01 minutes of the podcast.

The Spy Shop has a pen that makes both video and audio recordings much more convenient, and which is less cumbersome than a Mobile Telephone, for around £100. It is worth every penny. I have one.

So, is it legal to make a covert recording, and do you need the consent of those persons whom you are recording? The honest answer is it all depends on the particular circumstances and nature of your work. Unless you work for the security services, or are acting to ‘entrap’ your employer by acting in bad faith, it would, in my opinion not be illegal to covertly record, not least as covert recordings are admissible in the Tribunal.

As stated above, sometimes in order to get to the very great evil of discrimination, covert recording are an ‘evil necessity’.

Since Covid, many grievance, capability, disciplinary and performance hearings are held via video such as Zoom or MS Teams. This makes it easy than ever to record.

Breach of Implied Term of Mutual Trust & Confidence:

.

I previously assisted a client who was subjected to a Disciplinary Hearing for alleged ‘fraud’. The client was accused of defrauding his employer in the way he claimed his travel expenses. When our client received the letter inviting him to a Disciplinary Investigatory Meeting, he approached his line manager and covertly recorded the manager blatantly admitting that she had given him a green light to claim expenses in the way, which he had done.

During the Disciplinary Hearing, our client played the recording of his manager giving him consent to claim travel expenses in the manner he had done.

Thus, the Disciplinary Hearing was subsequently withdrawn. However, a few days later my client was invited to another Disciplinary Investigatory Meeting for having recorded his manager without her consent. The employer argued that the employee had breached the implied term of trust and confidence, by making the covert recording (alleging gross misconduct). The employer also alleged that my client had breached The Data Protection Act 2018.

For the avoidance of doubt, any breach of the implied term of trust and confidence can mean instant dismissal and/or repudiation of contract by either the employer or employee.

Morrow v Safeway Stores [2002] IRLR 9

“The EAT holds that any breach of the implied duty of trust and confidence will inevitably be repudiatory, entitling the employee to resign and claim constructive dismissal.”

However, this (in my opinion) is a storm in a teacup.

“Without Prejudice” Conversations:

.

Pursuant to s.7; s.8 and s.9 of the Enterprise and Regulatory Reform Act 2013, as from April 6^th 2014, there is far greater emphasis on an employer to attempt to reach a settlement agreement with an aggrieved employee to avoid litigation.

However, an employer cannot seek to enter into without prejudice conversations unless there is an actual ‘dispute’ between yourself and your employer.

In discrimination cases, often the need to get to the truth may require the “without prejudice” rule to be set aside.

In the case authority of BNP Paribas v Mezzotero [2004] IRLR 508 following her return from maternity leave, Mrs Mezzotero raised a grievance stating that she had been demoted and was being treated less favourably ‘because of’ her sex. While her grievance was being investigated, she was invited to a meeting, which Mrs Mezzotero agreed would be held “without prejudice”. At the meeting BNP suggested that her employment be terminated. Mrs Mezzotero brought a claim against BNP Paribas for both sex discrimination and victimisation in the Tribunal.

Mrs Mezzotero wanted to disclose the contents of the “without prejudice” conversation as being in itself, an act of discrimination / victimisation.

It was decided by the Court that the conversation was not ‘privileged’, and therefore, could be disclosed in the Court. Put shortly, the without prejudice conversation was in the ‘public interest’, therefore the Court held that there needed to be full consideration of all the facts in cases of discrimination.

Many an employer has fallen foul when subjecting an employee to a Grievance / Disciplinary Hearing insofar that even conversations, which are held “without prejudice” can be put forth as evidence at the Employment Tribunal if it is necessary to prove discrimination or victimisation.

The Employment Tribunal may decide that due to the “evil of discrimination” it needs to hear a claim on the basis of the ‘best available evidence’, which may even include “without prejudice” discussions between employer and employee. Google – Brunel University and another v Vaseghi and another EAT/0307/06.

This, no doubt, would be to the employer’s detriment, especially where the employer has acted in a capricious manner towards you.

Moreover, in January 2014, the Employment Appeal Tribunal (EAT) held that secret recordings of even ‘private deliberations’ made in the course of grievance and disciplinary proceedings can be admissible in evidence – Punjab National Bank (International) Ltd & ors v Ms S Gosain UKEAT/0003/14/SM. However, the Courts have subsequently backtracked on this since.

The above cases will potentially have profound and worrying ramifications for employers in undertaking disputes germane to Grievance; Disciplinary, PIP, Capability and Sickness Absence Procedures.

The Tribunal will determine for itself the admissibility of covert recording during private deliberations on a case-by-case basis.

GDPR 2018 / Data Protection Act 2018:

.

As stated in previous paragraphs, it was alleged by my client’s employer that he had breached The Date protection Act 2018, due to making a covert recording. However, when pushed, the employer was unable to refer to any Statute within The DPA 2018, which my client had allegedly breached. The manager undertaking the Disciplinary obviously thought that by adding the ‘Breach of The DPA’ to the Disciplinary Letter, made the allegations against my client sound stronger.

However, when pressed, the manager was unable to substantiate his claims that my client had breached his line manager’s Data Protected Rights as alleged or at all under the auspices of The Data Protection Act 2018 / GDPR 2018.

All that was discussed during the recorded conversation was the alleged ‘fraud’. Put shortly, there was nothing of a personal nature discussed, which breached his line manager’s data protected rights.

If you do make a covert recording, and your employer subsequently finds out at a later date that you have made a covert recording (if you are suffering from a physical or mental impairment) you can always argue that you made the covert recording because of your diminished cognitive function and impaired thought processes. Therefore, if the employer wanted to discipline you for making the convert recording (or make it a disciplinary matter) you could argue that the employer is treating you ‘unfavourably’ because of something arising in consequence of your disability under the auspices of s.15(1)(a)(b) of The Equality Act 2010. Notwithstanding, you may also be able to successfully argue that it was a reasonable adjustment pursuant to s.39(5) of The Equality Act 2010, to record the Grievance / Disciplinary Hearing.

If you get caught, contact us! 07775943414 (9-5) or email us at myrightsuk@protonmail.com

Meeting v Hearing:

.

There is a vast and distinctive difference between attending a meeting and attending a hearing.

Employers have a habitual proclivity to use the words meeting and hearing in the same letter. Thus, you need to establish whether you are attending an actual meeting, or an actual hearing. This is very important.

In 2015 I attended a disciplinary with my friend. Within the letter inviting my friend to attend the disciplinary, the HR officer had written that my friend was invited to attend a ‘disciplinary meeting’. However, when my friend & I attended that meeting, there was a panel of seven people assembled. Because my friend suffers from post-traumatic stress disorder, he had a psychological breakdown at the sight of the panel of seven assembled persons. He hyperventilated and had an anxiety attack.

Thus, it was incumbent upon the HR officer to have made sure that my friend knew he was attending a disciplinary hearing, and not a disciplinary meeting! The failure to do so amounted to ‘unfavourable treatment’ on protected grounds of disability and led to us raising new grievances for disability discrimination. The need to have informed my friend of the fact he was actually attending a disciplinary hearing was a failure to make a reasonable adjustment, as was the omission to have given him an agenda of the disciplinary in advance of the disciplinary hearing.

It is fair comment to say that had my friend realised he was attending an actual disciplinary hearing, that he would have better prepared for the hearing. Therefore, my friend brought claims against his employer in the Tribunal for discrimination on protected grounds of disability.  The argument was that the employer had put my friend at a disadvantage because of something arising in consequence of this post-traumatic stress disorder and panic attacks by failing to inform him of the fact he was attending a disciplinary hearing. Moreover, the employer had failed to make any reasonable adjustments for my friend to attend the ‘hearing’ despite having imputed knowledge of his disabilities. This omission was to his ‘detriment’. The ‘detriment’ being the employer treated my friend ‘less favourably’ in comparison to a non-disabled person, which was a contravention of s.13(1) of The EqA 2010. See Deer v University of Oxford [2015] EWCA Civ 52 at paragraph 26:

“There will be very few, if any, cases where less favourable treatment will be meted out and yet it will not result in a detriment. This is because being subject to an act of discrimination which causes, or is reasonably likely to cause, distress or upset will reasonably be perceived as a detriment by the person subject to the discrimination even if there are no other adverse consequences.”

 Asking Questions:

.

Whether you are attending a Grievance Meeting, PIP, or Disciplinary Hearing, you want to pose a series of questions (in writing) as many days in advance of the actual Hearing as you can.

Send your list of questions via email in advance of the meeting or hearing, so that you can prove later (if needed) that the questions were sent, and moreover, the time and date they were sent. If you do not send them by email, and if things get ugly, your employer will likely lie and say they never received the questions.

The reason for submitting questions in advance of a grievance meeting or disciplinary hearing is to obtain further and better particulars or to obtain evidence.

ACAS have endorsed submitting questions to an aggrieved party’s employer in order to obtain answers to their grievances.

ACAS have provided clear advice of how an employer should go about answering an aggrieved employees questions.

A failure by the employer to follow the ACAS Code, could lead to an Employment Tribunal increasing any award by up to 25%.

Example Questions Grievance:

.

For example, if you have made a complaint for bullying and harassment you could ask the following questions:

I require to know the following information no less than 7 days before the Grievance Meeting:

1. I require to know what specific training my line manager has been given over the last three years in the prevention of bullying and harassment at my place of work?
2. I require to know the specific date/s my line manager underwent the training, and the name/s of the person/s who facilitated the aforementioned training?
3. I require to know the specific reasonable steps, which my employer has taken in accordance with s.109 of The Equality Act 2010, to both eradicate and eliminate discrimination and harassment at my place of work, since January 2023?
4. How do you say my employer has taken ‘reasonable steps’ to prevent my line manager harassing me?
5. In answer to question 4 above, how do you say my employer has promoted, championed and embedded its Bullying and Harassment Policy and Procedures amongst the workforce at large, at my place of work since January 2023?
6. I require to know, over the last three years, whether my line manager has been the subject of a grievance and/or disciplinary investigation?
7. In answer to question 6 above, please state the specific nature of the grievance?
8. I require to know whether any grievances against my line manager were upheld, and if so, on what grounds?
9. When was the last date the Equality Policy was monitored and reviewed?
10. How do you say the unwanted conduct to which I have been subjected to by my line manager, does not amount to bullying and/or harassment?
11. How do you say my line manager’s unwanted conduct has not caused injury to my feelings?
12. What consideration in the grievance outcome will be given for the injury caused to my feelings?
13. Specifically, what consideration will be given to ‘my perception’ of the bullying and harassment, which I have been subjected to and have complained about?

With regard to any list of questions you ask your employer, at the end of the list of questions, you could cut and paste the following:

Dattani v Chief Constable of West Mercia 2004 –

A respondent, asked a direct question in writing by an aggrieved person, who fails to respond, or does so evasively, ought to be treated in the same way irrespective of whether a question has been asked under the statutory procedure. This approach is made clear by the judgment in Barton where in guideline 6 (paragraph 25) there is this:

“These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the Sex Discrimination Act: see Hinks v Riva Systems EAT/501/96.”

The reason you want to cut and paste the aforementioned case law, is because your employer will do everything in its power not to answer your specific questions. The employer and the HR Department will not want to give you any ammunition, which can subsequently be used against them.

By cutting and pasting the aforementioned case law, you are letting your employer know that if they do not answer the questions, and if matters do escalate to the Employment Tribunal, that you will ask the Employment Tribunal to draw an ‘adverse inference’ on your employer’s failure to answer your questions. Of course, don’t forget, you have to ask ‘reasonable questions’!

Example Questions Disciplinary Hearing:

.

1. Please state what training the investigating officer has received to make him/her a competent person in investigating the allegations, which have ultimately led to my being subjected to a disciplinary hearing?
2. How do you say the investigating officer does not have a conflict of interest in investigating the allegations against me?
3. I require sight of all evidence against me at least 7 working days in advance of the Hearing.
4. I require sight of all the investigators notes 7 working days in advance of the Disciplinary Hearing, which mentions me by name, rank, number, profile or position. Should you prefer, I will serve a Subject Access Request in accordance with Article 15 of The GDPR 2018?
5. Please state whether I will be allowed to cross examine any witnesses at the Disciplinary Hearing. If not, why not?
6. How do you say not allowing me to cross examine witnesses affords me a fair and equitable Disciplinary Hearing?
7. What reasonable adjustments are to be implemented to accommodate my disability for the Hearing?
8. Am I allowed to call witnesses? If not, why not?
9. How do you say not allowing me to call witness provides me a fair and equitable Disciplinary Hearing?
10. What steps are being taken to ensure I receive a fair and equitable Hearing, which Hearing is not prejudiced with bias?

Below are two cases, which you can use where you are being subjected to a disciplinary:

Spink v Express Foods Limited [1990] IRLR 320 –

 “It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case.”

Bentley Engineering Co Ltd v Mistry [1979] ICR 47 –

“Employers disciplinary proceedings require that an employee should have a chance to state his own case [and] to know sufficiently what was being said against him, so that he could put forward his own case properly, and have a chance to state his own case in detail. The employee must know in one way or another sufficiently what is being said against him. If the employee does not know sufficiently what is being said against him, he cannot properly put forward his own case. This encompasses the employee either being allowed to see witness statements against him or be allowed to listen to what witnesses have to say about him.”

Note:

.

It is incumbent upon you to challenge, object and protest everything that your employer, its HR Department, and management do to you, especially if you disagree with what they are doing to you.

If you don’t object, protest, and challenge, then you ‘affirm and acquiesce’ what they are doing to you. The ramifications of not objecting, protesting and challenging the employer’s actions were succinctly outlined in the authority of Hargreaves v Governing Body of Manchester Grammar School UKEAT/0048/18/DA. Click the link and read the case so that you don’t make the same mistakes as this poor guy and his union representative. The moral to the story is, don’t be a nodding donkey during an investigatory process.

 Subject Access Request (SAR):

.

Pursuant to Article 15 of The GDPR 2018, you are entitled to see your personnel file. The employer has 30 days to comply.

In addition, you can ask for specific information, which refers to you by name. This could include emails between HR and the investigator, or management and HR. It can include emails between your manager and HR germane to your performance or conduct.

If an employers’ HR Department are savvy, they will not refer to you by name in correspondence, but instead will assign you a number, or refer to you by rank or position in emails and documents. Thus, when you make the SAR you want to always ask for anything, which refers to you by ‘name, rank, number, position or profile’.

You may want to hold off in making a SAR until after the grievance / disciplinary outcome has been communicated to you. This way, there will be more documents for your employer to disclose.

Example SAR:

.

Dears Sirs,

I am making a SAR pursuant to Article 15 of The GDPR 2018. Within this subject access request, I seek the entire content of my personnel file; in addition to all correspondence between Human Resources and my line manager (Timothy the Terrible) germane to the recent investigation into my grievances, and grievance outcome, which mentions me by name, position, rank, number of profile. I also require sight of my annual appraisals and 1 to 1 meetings with Timothy the Terrible since 1.1.2024.

Yours faithfully,

Making Reasonable Adjustments to Hearings:

.

Many of us are classed as having a disability, without us even realising we have a disability.

For example, I suffer from Asthma. My asthma is classed as a disability pursuant to s.6(1) of the Equality Act 2010 because (1) my Asthma has lasted for 12 months; (2) I take medication to control my disability (*deduced effect); (3) without my medication my disability would affect my ‘mobility; (4) my disability has a substantial adverse effect on my day-to-day activities.

*Deduced effect of medication = The Employment Tribunal looks at a disability as the effect of that disability, without medication or treatment.

So, if you have a medical condition like IBS, ADHD, Diabetes, Anxiety, Asthma, Depression, Panic Attacks, Migraines, CFS, Cancer, Crohn’s Disease, Heart Problems, Thyroid, or are Menopausal,  you may well fall within the definition of having a ‘disability’.

Thus, if you think you have a disability or impairment, then ask your employer to make reasonable adjustments to the grievance, PIP or disciplinary procedures.

Ask your Employer, its HR Department and Management (in writing vie email) to observe and implement the recommendations within The EHRC Statutory Code of Practice on Employment 2011, Chapter 17 Paragraph 6.93:

“Employers should ensure that when conducting disciplinary and grievance procedures they do not discriminate against a worker because of a protected characteristic. For example, employers may need to make reasonable adjustments to procedures to ensure that they do not put disabled workers at a substantial disadvantage.”

A reasonable adjustment can even be to undertake the grievance meeting and/or disciplinary procedures via written form, so you do not have to attend face to face meetings either in person or via video link.

For example, if you suffer from asthma, PTSD, cancer, CFS, panic attacks or depression, then you can ask your employer to undertake the Grievance, Disciplinary, Performance, Capability Hearing via written form as a ‘reasonable’ adjustment to ameliorate the disadvantage of attending in person or via video link.

Of course, the employer is not going to want to do this. However, pursuant to s.19(1)(2)(c)(d)(3) and s.20(3) of the Equality Act 2010, the employer must not apply upon an employee or worker with a disability or an impairment any (i) provision; (2) criterion or (3) practice, which ‘provision, criterion, practice’ either ‘puts’ you or ‘would put’ you at a substantial disadvantage because of a disability you have.

This allows challenges to ‘provisions, criteria or practices’ which have not yet been applied, but which would have a discriminatory effect if they were applied. This position is supported within The EHRC Statutory Code of Practice on Employment 2011 at Chapter 4, Paragraph 4.7:

“The Act also requires that it puts or would put the particular worker at that disadvantage. This allows challenges to provisions, criteria or practices which have not yet been applied but which would have a discriminatory effect if they were.”

Thus, if you suffer from any medical condition, which effects your cognitive function, thought processes or memory, you could easily state to your employer that to attend any Meeting or Hearing in person would ‘put you’ at a disadvantage because of your disability or impairment.

If you suffer from IBS, you could say attending face to face meetings would exacerbate you IBS.

If you have a diagnosis of cancer, then your employer is legally obligated to reduce your levels of stress. Thus, not to attend a Meeting or Hearing would be a ‘reasonable adjustment’.

Different disabilities effect different people in different ways. Reasonable adjustments to attend a Disciplinary, Capability, Grievance or Performance Hearing could be to pay for a taxi to and from the Hearing where you have a back or knee injury. A disabled car parking space for you to park in. A comfortable chair to sit in. Short breaks to stretch out. To hold the Hearing on the ground floor if there are stairs in the building.

Put shortly, if you have a disability or impairment, which effects either your (1) mobility or (2) concentration, then ask the employer to undertake the Grievance / Disciplinary Hearing via written form.

Example letter to your employer:

Dear Sirs,

I have been asked to attend a Hearing on ??/??/??. For the avoidance of doubt, to attend this Hearing in person would be too stressful for me. It would significantly influence my put your medical condition here. Consequentially, I am asking management to make a reasonable adjustment in accordance with s.21 and s.39(5) of the Equality Act 2010, and undertake the Hearing via written form. I trust I will not be subjected to discrimination arising from disability in contravention of s.15(1)(a)(b) of the Equality Act 2010 in the manner in which the Company undertakes the grievance / disciplinary procedures.

Yours faithfully,

If your employer rejects this request (which they will likely do) consult your doctor and ask him/her to write a letter to your employer to state that you are unfit to attend face to face meetings and/or via video link.

If you get stuck and need help, then contact Amy & I. We charge £50 an hour.

Difference between an ‘impairment’ & ‘disability’:

.

In the case authority of Ministry of Defence v Hay (2008) Mr Justice Langstaff, in the Employment Appeal Tribunal, reminds us that the concept of disability in the Act is not a medical model, but a ‘functional’ model because the definition focuses on ‘impairment’. An ‘impairment’ is not the same as a ‘disability’. It is directed towards what a claimant cannot, or can no longer do at a practical level. Thus, a constellation of symptoms which lasted over 12 months, even though the precise disability on which the claim was based according to expert evidence would have lasted less than 12 months, can be regarded as a combination of impairments with different effects, to different extents, over periods of time which overlapped and which constitutes a qualifying disability.

Workplace Colleagues:

.

Pursuant to s.10 of the ERA 1999, when invited by your employer to a grievance meeting or disciplinary hearing you are entitled by law to bring either a workplace colleague or trade union representative with you.

For the avoidance of doubt, you are not entitled to have either a workplace colleague or union representative with you at a ‘disciplinary investigatory meeting’. However, there are exceptions such as where the employee has an impairment or disability.

The employer will want to follow this procedure very strictly, and will not usually allow you to bring a family member or friend.

However, if you have a disability or impairment, which effects your cognitive abilities such as those medical conditions outlined above, your employer allowing you to bring either a friend or family member would be a ‘reasonable adjustment’ in accordance with s.39(2)(b)(5) of the Equality Act 2010. This position was held in the case of Crisp v Iceland Foods Ltd ET/1604478/11 & ET/1600000/12.

This is where my wife Amy & I will often deliberately allow the employer to discriminate against a disabled client of ours in order to obtain evidence of discrimination against the employer. For example, within the grievance letter which you submit, you should have already told your employer if you have a disability or impairment. Please see our free grievance letter template for work-related stress, bullying, harassment and discrimination.

Thus, the employer cannot later argue that it did not know of your disability or had ‘constructive knowledge’ of your disability. This position is supported within The EHRC Code on Employment at Chapter 5, Paragraphs 5:14 & 5.15:

“It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’.” 

 “An employer must do all they can reasonably be expected to do to find out if a worker has a disability.”

In the authority of AECOM Ltd v Mr C Mallon: [2023] EAT 104, the Employment Appeal Tribunal made the following observation at paragraph 30:

“An important theme in the case law on this issue is that consideration of whether an employer reasonably ought to have known whether the claimant was disabled and at the relevant substantial disadvantage requires the employer to make reasonable enquiries of the employee. An employer cannot ‘turn a blind eye’. This is a point made clear in the EHRC Employment Statutory Code of Practice 2011 (“the Code of Practice”) which states at paragraph 6.19 that an employer must “do all they can reasonably be expected to do to find out whether” an applicant/employee has a disability and is, or is likely to be, placed at a substantial disadvantage.”

Therefore, if your employer does not allow you to bring a family member or a friend as your ‘chosen companion’ to a Grievance Meeting, Disciplinary Hearing, Capability Meeting, Sickness Absence Meeting, it could amount to discrimination arising from disability and a failure to make a reasonable adjustment.

If you are battling your employer on this point, and your employer is not bending, then contact us via email – myrightsuk@protonmail.com to arrange a telephone consultation.

Minutes of Meetings:

.

The employer will usually have a member of HR present to minute any meetings. However, I can almost guarantee that the minutes of the meetings, which you have with your employer will not be verbatim or a true reflection of what [you] say and/or what you have said. Please see our webpage on what not to say in a grievance meeting. You can also visit our webpage which outline 20 Hot Tips on writing a grievance letter.

During the hearing you attend, the employer will usually leave out the important parts of what you have said, or twist what you have said to suit the employer’s own agenda in order to avoid limitation of liability for bullying, harassment and/or discrimination.

Remember, the HR Department exist to protect your employer, not you!

The HR Department’s job is to mitigate your employer’s liability!

Consequentially, this is why I say I would personally always record all conversations with management and HR. Ultimately, it is up to you.

Notwithstanding, you can ask the HR Department in advance and in writing, that at the end of a Grievance Meeting, PIP, or Disciplinary Hearing, that you will want to go through the note takers notes to make sure that the notes taken are a true and accurate reflection of the meeting / hearing, which has just taken place. You could write something like –

Dear Sirs,

I am concerned that the minutes of the meeting will not be an accurate reflection of what I state during the meeting / hearing. As such, I am asking that straight after the meeting / hearing has concluded that I am allowed to go through the note takers notes, and furthermore, receive a photocopy of the notes to ensure they are a true reflection, of that which I have stated. In this regard, I am asking the Company to observe the implied term of mutual trust and confidence. Please confirm my employer is agreeable to this.

Yours faithfully,

However, don’t be duped into signing the pages of the note takers notes straight after the Grievance Meeting or Disciplinary Hearing. More often than not, you will be exhausted. Instead, ask the note taker to make a photocopy of the notes after the meeting and give these to you straight away. Don’t leave without them. Worst case, use your i-phone to take pictures of the note takers notes. Take these notes home with you. It will then be very hard for the HR Department to doctor the minutes of the meeting at a later date, because they know you are already in possession of a copy!

Acting Reasonably:

.

Both the employee and employer, ought to follow the ACAS Guidelines germane to grievance and disciplinary matters. A failure to follow the ACAS guidelines could lead to an increase or decrease of 25% on the offending party, should the matter end up in the Employment Tribunal.

The modus operandi of your employer will always be to be ‘seen to be acting reasonably’. However, be aware, that the employer will not actually ‘act reasonably’ at all.

There is no end to the skulduggery, which my wife Amy & I have personally witnessed given the conduct of thousands of HR Departments to date, which includes committing fraud, the doctoring of documents, altering notes, deliberately misplacing documents, forging the employee’s signature, pretending to have sent letters to the employee, which were never actually sent, and just fabricated false witness statements, falsifying documents. It is endless.

Do not underestimate the dirty tricks, which you will be subjected to by your employer, its management, and the HR Department. Read our testimonials page.

I just want you to remember this one point – just think that everything you say or write to your employer will one day be seen before a Judge. If you think and act in this way, then your actions will always be justifiable.

However, that is not to say that you too cannot play dirty. In fact, when a client instructs us to assist them, I play nothing but dirty with HR and Management. That said, every letter I write is always to be seen to have been acting reasonably; I just don’t actually act reasonably at all.

Play the bastards at their own game.

The Hearing:

.

Just about all of us fear the unknown. Being asked to attend a Grievance or Disciplinary Hearing enters us into the realms of the unknown, which causes us to be fearful. HR know this, and will use your fear to their advantage by taking control of the Hearing.

This is a mistake. Even if you are shitting yourself, don’t let HR lead you by the nose like a donkey.

Points germane to the Hearing:

.

• Be assertive but not aggressive.
• Keep your voice calm.
• Don’t be confrontational.
• Answers questions with thought. The less said the better.
• Always pause 3 seconds before answering any questions. This way, if you are asked a question which catches you like a rabbit in the headlight of a car, it gives you time to think about your answer, without appearing suspicious.
• Don’t babble.
• Don’t say more than you need to say.
• If a period of silence ensues, don’t be tempted to fill the void of silence by talking.
• Remember, the more you say in answering questions, the more evidence your employer will gather against you.
• Don’t make statements, which could be defamatory. See our 20 Hot Tips regarding defamation.
• Try to answer a question with a question. The Hearing is not one sided. It is there for you to ask questions too.
• Ask for short breaks.
• Discuss how any acts of bullying and harassment have made you feel.
• If you don’t want to answer a question, then don’t answer it!
• Don’t be put under pressure or duress. If this happens, stop the meeting.
• Don’t allow what you have said to be misconstrued or twisted. For example, clarify what you say and don’t be ambiguous. For example, don’t say “Jonny is a bit of a bully”. Either Jonny is a bully, or he isn’t a bully.
• Don’t be afraid to ask questions. In fact, prepare a list of questions in advance to ask at the Hearing (make copies for all persons present), but do not share these questions until you are actually at the Hearing. No point in allowing your employer a chance to prepare their answers in advance.
• Discuss in great detail how the impact of any bullying, harassment, discrimination has affected your health, such as anxiety, sleepless nights, night sweats, feeling tired all the time, anxiety attacks.

Policies & Procedures:

.

Prior to attending any Meeting or Hearing, do your homework in advance. If your employer has a Dignity at Work Policy, then read through it. Make a copy of the policy and take the policy to the Hearing. The employer’s policies and procedures usually read well in theory, but act poorly in principle.

So, where your employer’s policy makes a statement, use the statement against the employer at the Hearing.

For example, if the Dignity at Work Policy says something like – “As a Company, we ensure a working environment with dignity and respect for all employees” – then ask at the Hearing how you harasser has afforded you both dignity and respect in accordance with the Company’s policies?

Likewise, if your employer’s Bullying & Harassment Policy states something like – “Bully and Harassment will not be tolerated and could lead to dismissal” then ask why management have tolerated Timothy the Terrible harassing you, and what preventative steps the employer took to eradicate and eliminate harassment at your place of work.

Use the words of your employer’s Policies to your advantage. If your employer has not taken the steps within its own policies and procedures, then draw an adverse inference upon this.

Lap dog or Rottweiler?

.

When an employer holds a Hearing to discuss matters such as grievance, disciplinary, capabilities, performance or sickness absence, then these meetings are a golden opportunity to put forth your arguments to argue your own case. Don’t be a lap dog. Take the upper hand and use any meetings or hearings to your advantage to either dispel allegations, or put forth your own case.

Don’t let the manager conducting the meeting rule the roost. If you want to have your say, then say it.

Finally, when you address the Hearing, keep your sentences short and to the point. Whether writing or speaking make your point, before moving on to the next point. Below are two examples where you can see how writing or making a statement without stopping, can lose the effect.

Example 1:

Timothy the Terrible came up to me and mentioned how he liked my short skirt and then he placed his hand on my knee and then asked me if I would consider going out with him before moving his hand up to my thigh and I just didn’t know what to do because I just froze and I felt awkward and felt intimidated and scared.

The above example is a mistake, which Amy & I frequently see people make. They are too much in a rush and gush their words out.

A better example is below, where each step of Timothy the Terrible’s actions are broken down into bite size statements to give the statements much more impact.

Pauses create effect. Politicians use pauses all the time. Barrack Obama was a master at this.

Example 2:

• Timothy the Terrible came up to me (pause).
• He mentioned how he liked my short skirt (pause).
• He then he placed his hand on my knee (pause).
• He asked me if I would consider going out with him.
• He moved his hand up to my thigh (long pause).
• I just didn’t know what to do. I just froze. I felt awkward (long pause).
• I felt intimidated and scared (reach for handkerchief!)

The Victim:

.

Actions can speak louder than words. There is no shame in crying in a PIP or disciplinary meeting. Add in a few tears. Reach down for a handkerchief whilst talking. Play for time. Act the victim. You are the victim so play the part of the victim.

By making long pauses you are in effect driving home your statements. Do not under state the profound and detrimental impact, which the actions of Timothy the Terrible have had upon your psychological health. A picture paints a thousand a words:

Spring v Guardian Assurance plc, (1994) 2 All ER 129

“The changes which have taken place in the employer-employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial decision, to care for the physical, financial and even psychological welfare of its employees”.

Duty of Care:

.

Drive home the employer’s statutory ‘duty of care’ to you as the victim.

Pursuant to s.1(1)(a) of the HSAWA 1974, the employer has a [duty of care] for your health, safety, and welfare at work.

Pursuant to s.2(1)(2) of the HSAWA 1974, the employer is legally obligated to ensure a [safe place] and [safe system of work] for you. This includes a working environment free from harassment and disruption (whether by one person or a group of persons – workplace mobbing).

Make a drama out of this at the Hearing. Ask your employer and its management how they are going to observe a statutory ‘duty of care’ for your health, safety, and welfare at work?

Ask management and HR what steps they are going to take to eradicate further acts of harassment and disruption from being meted out on you.

Wigan Borough Council v Davies, [1979] ICR 411, EAT on 26th January 1979:

“There is an implied term in contracts of employment that the employer will provide reasonable support to ensure that the employee can carry out his/her duties without harassment or disruption by fellow workers; and where an employer has an obligation to take reasonable steps to achieve something and takes few or no steps, the onus of proving what steps would have been reasonable is on the employer.”

Waters (A.P.) v. Commissioner of Police For The Metropolis [2000] 1 WLR 1607; [2000] UKHL 50; [2000] IRLR 720

 “If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and, if they do, that physical or mental harm may be caused to an individual.”

Conclusions:

.

Amy & I are here to help you. We have walked the path which you now tread thousands of times, not just personally, but also for family members, friends, and our clients. We know all the dirty tricks your employer will play. We only charge £35 for an initial consultation up to one hour either by phone or video link. We can assist you in preparing yourself for a disciplinary, PIP, grievance meeting, sickness absence meeting or capability hearing. If you want to get the advantage over your employer, and see all the angles available to you, then reach out to us. We work 7 days a week (9-5). Please call us on 07775943414 to book a consultation or email us at myrightsuk@protonmail.com

Remember, you only get one chance to get this right!

Amy & I took our own employers to the Employment Tribunal as litigants in person. We built this website to assist you on knowing your employment rights UK, including what to say and what not to say when attending grievance, capability, disciplinary or PIP meetings. Please see our testimonials page.

• Don’t use AI to write your grievance letter.

Amy & I have created some new webpages for 2026 for you to look at:

• 20 Hot Tips on how to write a grievance letter.
• Free grievance letter example for ‘work-related stress, bullying, harassment and discrimination’.
• What not to say in a grievance meeting.
• How to win a grievance appeal.
• How to fight and beat a Performance Improvement Plan.
• Covert recordings.
• Pregnancy & Maternity Discrimination.
• Whistleblowing

We can have a telephone consultation with you or write you a custom letter of grievance if you need assistance on any of the following matters:

• grievance letter for bullying and harassment
• toxic working environment
• grievance letter against a coworker
• constructive unfair dismissal
• work-related stress
• stress at work employee rights UK
• grievance for work-related stress
• Sickness absence meeting
• what not to say to occupational health
• resignation letter
• raise a grievance at work.
• unfair treatment at work
• performance improvement plan
• how to beat a disciplinary hearing
• disciplinary workplace investigation.
• suspended from work
• blow the whistle
• victimisation at work UK
• workplace investigation
• reasonable adjustments equality act 2010.
• pregnancy and maternity discrimination
• sexual harassment in the workplace.
• disability discrimination
• what not to say at a grievance meeting

Visit our testimonials page.

Reach out to Sam & Amy at: myrightsuk@protonmail.com or call during working hours 9-5 on 07775943414.

Sam and Amy charge £35 for an initial telephone consultation up to one hour, and £50 an hour thereafter.