The rise of secret recordings used in evidence

Advances in technology, including the prevalence of smart phones and other portable recording devices, have meant that it is cheaper and easier than ever for employees to record meetings without the knowledge of other attendees.

Employees do not have a legal right to record internal meetings. Therefore employees may wish to surreptitiously record disciplinary and grievance meetings, performance meetings and even “one to ones”.   They may do this to gather evidence of ill treatment, proof of unfairness (such as evidence of a predetermined decision to dismiss made outside of a disciplinary procedure) or even to show clearly discriminatory attitudes.

If a recording suggests serious wrong doing such as bullying or harassment the employer is required to consider and act on this evidence, even if it was obtained without permission or in breach of company policy.   This is because it may have been difficult for the employee to gather such evidence through other methods. Therefore they may have felt they had no other option but to use covert recordings.

Before commencing disciplinary proceedings against an employee who has secretly recorded a meeting it is important for an employer to determine the facts of the case and conduct a proper investigation. Points to consider would include the employee’s reason for making a recording and if they have expressly been told not to make such recordings. If there is a clear policy prohibiting recordings which indicates that dismissal is a possible disciplinary sanction then an employer should be in a stronger position to take disciplinary action.

Covert recordings will be admitted as evidence in tribunals at its discretion.  Increasingly however, if the evidence is relevant to an issue between the parties, the tribunal will generally hear it. 

Some employers have tried to put forward breach of human rights arguments to prevent the admission of covert recordings as evidence. However it would need to be shown that the relevant HR Manager’s right to private or family life was being interfered with and this is unlikely in an internal meeting.

The tribunal will normally require the recording to be submitted as a transcript with a copy of the recording made available to both the tribunal and the employer.

Case law draws a distinction between the “open” and “private” sections of a procedure. Different considerations tend to apply at a “hearing” (where the subject employee is normally present), and the private deliberations of the panel (which may take place after the employee has left the room, perhaps without removing their belongings).

Tribunals are generally more willing to admit recordings of meetings where the employee was present as it is accepted that panel members should be able to conduct a full and frank discussion on the basis that these discussions remain private.  However if covert recordings of private deliberations show evidence of discrimination then tribunals may well admit this evidence.

In Chairman and Governors of Amwell View School v Dogherty, UKEAT/0243/06 the EAT decided that whilst a covert recording of a disciplinary hearing could be admitted, the subsequent recording of the panel’s private deliberations could not.

In Vaughan v London Borough of Lewisham and others, UKEAT/0534/12  the claimant tried to introduce 39 hours of secret recordings of interactions between herself, managers and colleagues.  This was unsupported by a transcript or clear detail of the content of the recording.  The tribunal did not admit this evidence because they were unable to evaluate if it was relevant to the issues of the proceedings.  On appeal the EAT upheld the tribunal’s decision but noted the outcome may be different if a more focused application had been made.  They also commented that covert recordings were “very distasteful”.

In Punjab National Bank (International) Limited and others v Gosain UKEAT/0003/14, the claimant alleged sexual harassment, sex discrimination and constructive unfair dismissal. She had secret recordings of the disciplinary and grievance hearing, including the panel deliberations. She obtained the recording of the panel deliberations by leaving a tape recorder in her coat when she left the room.  The private deliberations included comments:

• That the managing director had directed dismissal;
  
  
• That key issues in the grievance would be deliberately skipped;
  
  
• From the chair of the disciplinary hearing of a derogatory and sexually offensive nature about the claimant’s relationship with another employee.

The whole recording, including the recording of the private panel deliberation was ruled admissible even though the remarks did not directly relate to the matters under consideration by the panel.

Case law seems to show an increasing willingness by Tribunals to allow covert recordings if properly introduced into proceedings.

What does this mean for you or your business?

• Employees have no legal right to record meetings.
  
  
• Taking disciplinary action because an employee has made a secret recording could amount to victimisation under the Equality Act 2010 if the recording was made to provide evidence of discrimination.
  
  
• Covert recordings may be (and increasingly are) admissible in employment tribunal proceedings

What do you need to be doing now?

• Ensure you have a policy on recording meetings, and if it is your policy to not allow it, communicate it to employees in writing, for example in the staff handbook.  Set out the consequences of any breach.
  
  
• Ask employees at the start of any meetings / hearings to confirm that they are not recording.
  
  
• Don’t say anything in a meeting that you would not want an employment tribunal to hear.
  
  
• Be very careful with any other conversations taking place around the hearing like panel deliberations or comments during a break. Ensure managers do not “let off steam” or make inappropriate comments.
  
  
• Keep a confidential note of the rationale behind decision making for use as evidence if a future allegation is made.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.