Our webinar on disciplinary proceedings last week began unpromisingly – there is no new law and little new practice to learn, I had to say, not necessarily what you want to hear from your legal training session.  Nonetheless, we had several hundred sign-ups, perhaps tribute to the enduring mystique and indeed terror implicit in conducting contested disciplinary proceedings, especially remotely.

A handful of questions came up which we did not get to at the time, so here are the answers.

• If you refuse consent to the recording of the disciplinary meeting by the employee, can a recording made covertly still be used in any later disciplinary proceedings?

Yes.  There may be all sorts of conduct or trust and confidence issues arising out of the making of a covert recording (or still more so, a recording which has been expressly forbidden) but none of them will affect its admissibility in litigation.  Unlawfully obtained evidence might be an issue in criminal proceedings and television dramas, but the ET will not remotely care.  If you find that your employee has made such a recording, therefore, your first step is not to try and get it excluded from the proceedings (since you won’t succeed) but to get hold of it as soon as possible so that you can try to take the teeth out of whatever it says well in advance.  That means seeking a copy of the recording itself, not just a transcript.  If it appears only at the last moment, then it may be necessary to seek an adjournment of the proceedings (and possibly also costs) to allow the need for any consequent disclosure to be investigated and any supplementary witness statements to be prepared.  Whether the ET grants that application will depend on what the recording is alleged to say and how long it is.  If it is short and relatively uncontroversial, that application probably won’t be granted, but it is usually better to ask than not.  You might also want to look at these two earlier posts (Secrets and lies – admissibility of covertly- obtained evidence in the UK Employment Tribunal on 14 March 2013 and Playback time – the rights and wrongs of covert recordings in the workplace on 12 July 2019) concerning the ET’s likely approach to covert or forbidden recordings of disciplinary meetings.

• Is it ok not to allow the facility for an appeal against a failure to complete probation satisfactorily?

Again, usually yes.  As a rule, an employee will not have two years’ service when probation ends and therefore procedural failures of that sort just don’t matter.  However, remember that it will be a different question if the probationary period is actually a trial for a new role after some years’ prior continuous service with the same employer.

• If a disciplinary warning is issued and not appealed by the employee, can its fairness be challenged later?

In broad terms, a warning which goes un-appealed is indeed hard to challenge later.  However, there are reasons why an employee may legitimately choose not to appeal it despite not agreeing with it – stress, prolonging management awareness of the issue, an assumption that it will fail or make things worse, fear of retaliation, adverse impact on health, etc.  Therefore it is not the case that the employer can go straight from the absence of an appeal to an argument that the employee has accepted in his own mind the truth of the allegations against him or the appropriateness of the sanction imposed.

However, the more important question is whether that possibly continued personal disagreement with the merits of the warning gives the employee any rights to challenge the employer’s reliance upon it at a later point, for example by stepping from a final warning to dismissal.  Traditionally the Employment Tribunals have been very reluctant to allow this, but the point is not beyond argument.  In particular, the ET may agree to re-open the legitimacy of a warning (in the sense of not allowing the employer to base further disciplinary action upon it) where it considers that that warning was not given in good faith.  This case sets out in greater detail some of the principles by which the ET will assess that question.  It is enough for now to say that this requires the employee to go far beyond the mere fact that he doesn’t agree with it. Some genuine attack on the motivations of the manager imposing the warning will usually be necessary.