Racial Abuse

[stevel]

We have had a complaint regarding Racial Abuse. The abused has recorded a person in the act of abusing him. An investigation has been conducted, statements taken recommendations made. A disciplinarily hearing date set.
The offender has now come up with; the recording that has been made is not valid, no person is allowed to record what is said without giving notice that recording is intended. This being a breach of the Data protection Act and the Human Rights Act.

I have my views, what are yours

[Reddwarf]

I must admit when i started reading your post i was wondering what if anything you could do with a taped recording so i would say you would need legal advice if you plan on taking action. But if someone is being racist how would you prove it without it being taped or there just so happened to be an independent witness.

It seems ultimately the person doesn't deny making racist comments. I don't think data protection or human rights comes into it but more to do with what has been supplied on the tape they could have been selective about what they supplied to you. Or the person who was racially abused could have provoked the situation and only given you part of the conversation.

I certainly think you would need to get legal advice especially if you are looking at a dismissal. ultimately if there are other witness or just take the word of the guy that was being racially abused and remove the tapped conversation. Even without the taped conversation you would still need to investigate any claims made. Isn't racial abuse now a criminal matter shouldn't the police be involved?


Red

[stevel]

Red
Yes racial abuse is a criminal offence, but the person who has been abused would have to make that complaint. The other witnesses have made statements, the statements only say that "it was banter". Was just asking before go to legal advice what the advice/perception from peers would be.

[safetygal]

my father was accussed of racism a few months ago, by a woman he caught stealing at work.

there was no proof he was being racist and there was no proof she was stealing just what the two of them saw and or heard ... they beleived her over him because many companies fear the racism card. she recently got fired because she was caught stealing again by a manager - my father is trying to get the racism remarks disciplinary removed from his files now...

he said to the workplace he was going to carry a camera around with him and film her stealing, he was told he was not allowed to as this would breach her human rights - same goes for recording a voice

[Reddwarf]

I think the views of members doesn't really matter it's the legal standpoint if you can use taped evidence or not from what you say you are quite a long way into the process if recommendations have been made. Although the witness says it was just banter then clearly he overheard the actual words where used so what was actually said. You can still be racist with a smile on your face doesn't then make it banter. I think with the tape you would have to look what was said by both parties was the whole conservation recorded or just part. I couldn't come on here make racist comments and put a smiley face and say i was only joking.

I would say that if i wanted to prove i was being racially abused then i would look to record any instances as proof.

red

[safetygal]

it all comes down to perception if the person recieving the abuse perceives it to be abuse or bullying then it is...

I once had a bully who was stupid enough to bully me by email, but she did not think that her emails were bullying, HR read them they could see that she was a bully and she was disciplined - even though she could not see it - it was perception

[londonblue]

What is bullying/racial abuse, what one person considers being racial abuse another person thinks is banter and are just having a laugh?
I think it will all boil down to how the witnesses interpret the events, they will be the key to this, otherwise its just one person word against another

[bernicarey]

Don't confuse the rights of individuals with the responsibilities of companies.

Take a look at this website http://www.newbusiness.co.uk/articles/l ... versations" onclick="window.open(this.href);return false; I've quoted a couple of bits but the overall message is that recording between individuals is not always in breach of statute and may be permitted, even by a court of law... So seek legal advice.

Person to Person
Between two private individuals it is not prohibited to record conversations.The problem arises however, if that conversation is then provided to a third party for whatever reason, without the consent of both parties. Consent can be obtained retrospectively or by arguing it to be within the publics interest. As an example, reporters frequently record conversations covertly, but their defence is that the content is in the public’s interest and should be disclosed; in that knowledge of the recording would alter the content of the conversation significantly.

And the final few sentences...

The Employment Appeals Tribunal has also indicated that it would exercise its Part 32 powers to override statute and admit evidence if a fair trial was at stake – so even if precautions were taken by employers to prevent recordings, for issues such as discrimination claims it may still be permitted?

There is no clear answer in this area of law, but the basic principles of obtaining consent for recordings is one that everyone should follow the guidance and if you haven’t and want to rely on it, yes you probably can, but be aware of the risks involved.

[stevel]

My personnel view is that the recording of an event that is likely to contain bullying or racist comments should be allowed. However, my director is of the opinion that it should not.

We have compromised and sent it to the solicitors to gain clarification on the subject.

As bernicarey points out if you were to tell the person "I am recording what you say" then the offending words etc would not occur. But if you are able to edit or direct the conversation then that is as bad if not worse than the original act.
The company has the responsibility to protect its workers from abuse and to ensure that it meets the requirements of legislation

[Reddwarf]

i think a lot will depend on the course of cation that the company plans on taking if it is going to be a verbal or written warning then you may look at taking the witness statement and the employees complaint as being sufficient as well as the taped conservation. But if you are going to dismiss the person then you would want to be sure that the taped conversion could be used in a a wrongful dismissal claim. Does the person accept that they made racist comments or what someone might take offence to.

Red

[stevel]

The person knows that what has been said is racist, but they are trying to say that it was in jest. Just how you call some one a (Edited by Alexis. Sorry but can't say even in split language.) repeatedly is beyond me. Once we have the reply from the solicitors we will be able to ensure the course of action that taken is sustainable.

[The Instructor]

I'm pretty sure if you tape someone....you have to tell them you're "recording the conversation"...or something like that.......so you won't be able to use the tape as evidence.......

Aside from that tho.....if it was banter whether it is right or wrong.......why would you tape someone while having a bit of banter with them......sound to me like he was "set up".....
IMO