/>iDuring our recent webinar on Grievances in the Workplace, we received some questions via the chat facility. We addressed two of these here – below we have answered a few more.
What advice, guidance, or tips would you give to HR professionals when thinking about using voice recognition technology to take notes of meetings?
Now, call us old fashioned, but our advice when it comes to taking notes of meetings would usually be to have a separate human note-taker present who can record the key issues covered. There is, after all, no requirement (subject to anything in your policy to this effect) for meeting notes to be a complete verbatim record of everything that has been said – not only can that make any meeting notes incredibly long and tedious, but often it can mean you lose the key points made amongst all the other chatter that has been captured.
When it comes to taking notes of grievance meetings, there is not much guidance out there in terms of what is required. The Acas guidance on discipline and grievances at work simply says that, where possible, employers should arrange for someone who is not involved in the case to “take a note of the meeting” and to act as a witness to what was said. The Acas guidance on conducting workplace investigations goes a bit further and confirms that the notes of investigation meetings do not need to record every word that is said but should accurately capture the key points of any discussion. It goes on to say that “recording the meeting using an audio device may be done if the organisation’s policy allows it or with the consent of the interviewee. However, this can unnecessarily complicate the matter. Knowing they are being taped may be intimidating to an interviewee, making them less able to talk openly about the matter. It can also be time consuming because a transcript of the recording will usually need to be typed up so that it can be used as a witness statement.” As noted above, even though dictation software may cut down the time issue, we would echo these comments.
We recognise that technological advances mean that if a meeting is taking place virtually, the entire thing can be recorded at the touch of a button. Some systems also now provide an automatic transcribing service. Once again, however, we would urge caution before adopting this approach. Yes, it does make things simpler, and it can potentially save you having to arrange for a separate note-taker to be present, but, as anyone who has had to read such transcripts will confirm, the technology is still not 100% accurate and it can offer some very interesting suggestions as to what was said – certainly when it comes to less everyday words/phrases or technical terms. It also does still mean that you potentially end up with reams of notes and it can be difficult to see the wood for the trees when it comes to the key points that were discussed.
If you are going to go down this route, we would recommend that you invest in accurate software (or as accurate as it can be at the moment). Also, do not forget to consider the data protection implications of using such technology. If you record and transcribe a meeting, you will be collecting personal data (and possibly “special category” personal data too), storing it, potentially sharing it, etc., so ensure you comply with your obligations under data protection legislation, including having the correct information in your privacy notices and the relevant lawful basis for your processing of the data. Do not delete the recording once transcribed – there may be arguments about the accuracy of the written text or later challenges by the employee that the meeting was conducted with a certain degree of “tone” or “edge” which may not be visible in the black-and-white transcript.
If the employee asks to record the meeting, should you agree? Unless you positively intend to say something inappropriate or fear that you may not be able to stop yourself, yes, you should. This may be a reasonable adjustment for a disability, in which case you have little choice, but even in other cases refusal just looks as though you do not want an accurate record made. In addition, of course, your employees can now record the meeting on their mobiles without your knowledge, and even if you have expressly said no to recording, the transcript and/or the recording itself would still be admissible as evidence in the Tribunal, notwithstanding it was taken covertly. The only safe course is to assume that you are being recorded regardless, and act accordingly.
An employee submits a grievance during the notice period and then promptly goes off sick. Would it be reasonable for us to withdraw company sick pay?
The key question here is not so much whether it is reasonable to withdraw company sick pay but whether you have a contractual right to do so – and this will depend on what your documentation says.
The starting point would be that employees are entitled to company sick pay in the usual way, provided they have complied with any requirements of your sick pay policy (e.g., re: self-certification, notification of manager, etc.), and that their having given notice does not affect that. In those circumstances, you would only be entitled to withhold sick pay if you have good objective grounds to believe that the employee is not in fact sick, the burden of proving that being squarely on you.
However, if there is an express provision in your employees’ contracts or in your sickness procedure which says that employees will not be entitled to company sick pay if they are absent as a result of illness whilst they are working out their notice period (whether notice has been given by the employer or the employee), then you should be entitled to withhold company sick pay in these circumstances. One caveat to this – be aware that sections 88 – 91 of the Employment Rights Act 1996 provide that where employees are unable to attend work because of sickness or injury during their notice period and the employer only has to give the statutory minimum notice period to terminate the contract, they are entitled to receive full pay for the applicable statutory notice period. This is the case whether it is the employer or the employee that has served notice.
The above statutory provisions do not apply where the notice period to be given by the employer is at least one week more than statutory notice. So, check the contract carefully and, if in doubt, take some advice. If you withhold company sick pay and you do not have a contractual right to do so, it is possible the employee may resign and claim constructive dismissal, which is obviously a situation you want to avoid. Although the employee may already be under notice, so the value of any claim may be minimal, that would still risk invalidating any restrictive covenants, confidentiality obligations, or other continuing provisions under the contract of employment.
If you are going to withhold sick pay, even where contractually entitled to do so, you should also be careful that it cannot be alleged to be in retaliation for discrimination or whistleblowing allegations.
Can you give guidance on what outcomes can be shared with the employee who raised the grievance?
Let us start with what the Acas Code of Practice on Disciplinary and Grievance Procedures has to say about this. The Code states that following any grievance meeting the employer should “decide on what action, if any, to take.” It goes on to say that “decisions should be communicated to the employee in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance.”
Remember that, under the Acas Code, employees should be allowed at the outset of the process to explain their grievance and how they think it should be resolved. The employer is not bound by their response, but this may help frame a resolution to suit all parties. It should always be encouraged.
So, the focus is very much on what the employer is now going to do in relation to the grievance. If, for example, an employee made a straightforward complaint about not being paid for some overtime last month and the employer, having investigated this, accepts that this was the case, then the employee should be informed of the employer’s findings and paid for the sums owed. Grievance resolved.
Things have the potential to get more complicated where a grievance involves a complaint against a colleague or a manager, e.g., allegations of bullying or harassment. If the employer accepts that this has happened, then the employee should again be informed of the employer’s findings and in this situation be told in outline what measures the employer intends to take to prevent this happening again.
A common question we get asked is whether in this situation the employee who raised the grievance is entitled to dictate, or even just be told, what specific disciplinary action, if any, is taken against the colleague/manager involved. As a general rule, the answer is no. If, following the grievance investigation, the employer considers it appropriate to trigger the disciplinary process, then that is a separate matter. It should be sufficient in these circumstances to explain that appropriate action has been taken in light of the grievance investigation – the employee has no right to be told what precise disciplinary action follows as a result, or of any associated sanction such as a reduction to the guilty employee’s bonus, etc. The complainant is entitled to a remedy (i.e., that the conduct is not repeated), not to revenge. It will only be if the remedial action taken by the employer is outside the range of reasonable responses that the complainant has any recourse – a first written warning for serious sexual assault, for example – which could generate a discrimination and/or constructive dismissal claim. See our previous blog piece in which we discuss in more detail the purpose of a grievance process and the practical difference between redress and revenge.
