Use of Covert Recordings in Employment Tribunals
We have recently disciplined an employee who is persistently late for work and warned her that her conduct risks leading to her dismissal. We believe we have carried out the meetings well but she has written to us saying she secretly recorded a number of meetings with her boss and all of the disciplinary hearings. She says the recordings may highlight inaccuracies in our minutes of the meetings which are prejudicial to her. We have told her that as the recordings are not authorised they would never be allowed in court and we will be writing to her about disciplinary action as she has breached our human rights.
Many employees now have ready access to recording devices, such as mobile telephones. In this day and age, the issue of employees trying to use covert recordings of meetings with their manager as evidence in an employment tribunal is here to stay. Just because they may be seen as discreditable, does not make covert recordings inadmissible as evidence.
Human Rights arguments rarely meet any success in court so if you must discipline the employee do it on the basis of their deceit and loss of trust but only if you are convinced that it will not be seen as a sign that you have something to hide.
So in this case I would:
• Ask for either a transcript of what she has recorded or better still a copy of the original to listen to.
• Brief managers to ask at the beginning of meetings if they are recording the meeting.
• Ensure that behaviour during the meeting remains professional (just in case).
• Ensure that you have a clear rule in the future as part of your handbook which sets out that covert recording will be regarded as a serious disciplinary offence.
Tribunals regard covert recordings as “very distasteful” but acknowledge that employees often say it is the only way to expose injustice, such as
• proving that an employer’s minutes of disciplinary hearings omitted large sections of discussion or were deliberately inaccurate
• proving that notes were deliberately falsified
• proving discrimination.
Managers should be primed to assume they are being recorded, and that it could be admitted as evidence in a tribunal, and to act accordingly: That is, they shouldn’t say anything they wouldn’t wish to put their name to later.
If an employee, as part of a tribunal case or an appeal, states they have recordings, you should ask for:
• a transcript
• a detailed breakdown as to how the contents are relevant to any process they are involved in.
If you believe the contents are relevant, you should ask to listen to the recordings. If you don’t, you should keep a note as to why you feel that way. You should be prepared to argue before a judge as to why the evidence shouldn’t be heard.
This does not mean that employees can make secret recordings with impunity. Covert behaviour may have an impact on the Tribunal’s view of a Claimant. You may also use such behaviour as an example of how the employee’s conduct has destroyed the relationship of trust and confidence. An employee may also face charges that a clandestine recording is a breach of other obligations, such as privacy, confidentiality or data protection rights.
Should you suspect that recordings are being made, then voice your suspicions to the employee. If the employee lies and denies making recordings, this could later be used against the employee and may affect their credibility at Tribunal.
Some material will not be admissible at Tribunal. In a previous case, attempts by an employee to use material recorded covertly whilst the employee was not present and a disciplinary panel was considering issues, was not permitted to be used in evidence as it did not purport to evidence discrimination.
Some employers may wish to record investigatory and disciplinary meetings themselves in order to reduce the risks of covert recording but, such recordings are not a good answer as:
• it can increase the length and cost of proceedings as transcripts will generally be required.
• the notes tend to be significantly longer than what is produced by a good human note-taker
• they are still subject to technical issues and the quality may still make them open to argument over what was said.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.
Before you take any action make sure that you know what you are doing, or call us for specific advice.
