Can an employee secretly record a disciplinary or grievance hearing with an employer, and then later rely on such covert recordings as evidence in a tribunal?
This is a question that regularly crops up from employers and is especially relevant given the advances being made in modern recording technologies in devices such as mobile phones which make covert recordings easier.
Recent guidance from the Employment Tribunal indicates that even covert recordings may be used in evidence by an employee.
Why would you record a meeting?
Many people record meetings as it provides them with an acute record of the meeting; more so than those provided by a note-taker. In certain circumstances, it can add protection to parties involved as it can settle any disputes that may arise surrounding what has been discussed or agreed.
Are you allowed to record meetings?
Interestingly, there is no law against the recording of face-to-face meetings by businesses that are not public bodies. The business must inform the employee of this though. It is also easier on the hand than scribbling notes!
What about covert recordings?
What if an employee covertly records a disciplinary or grievance hearing? In most circumstances, they will only be able to admit as evidence the parts of the recordings in which they were present. Where the employee was not present (i.e. where a disciplinary panel has requested some time to deliberate) this part of the recording will not usually be admissible as evidence.
Most employers believe that covertly obtained recordings are inadmissible in a court of law or in an Employment Tribunal. However, there has been a recent legal case that suggests that employers should take care as this may not always be the case. It may be that conversations that are covertly recorded may be admissible in evidence at any subsequent Tribunal hearing at the discretion of the Tribunal.
In the most recent case on this point, the Employment Appeal Tribunal (EAT) found an employee that covert recordings of private comments of the disciplinary panel at their disciplinary hearing would be admissible as evidence. The reason that the EAT allowed this evidence to be used is that the particular comments made by the disciplinary panel did not form part of the deliberations regarding the grievance and disciplinary hearings. The comments were recorded during the breaks in the hearings and the employer was alleged to have made wholly inappropriate comments about the employee when they were out of the room. This included the managing director giving an instruction to dismiss the employee, and the manager who was hearing the grievance saying that they would deliberately skip the key issues raised by the employee their grievance letter.
How can an employer protect themselves?
It is important that employers ensure that their disciplinary and grievance policies contain an express prohibition against the recording of hearings without their consent. However, in instances such as those highlighted by this most recent case, an express prohibition in an employer’s policy will not assist an employer against the evidence being ruled as inadmissible.
It is therefore important for employers to keep in mind that, in these days where many employees will have the ability to covertly record proceedings on a mobile phone, care should be taken that all discussions at, and relating to a hearing, are appropriate in the circumstances. This includes any verbal or written communications that would need to be provided to the Tribunal at the disclosure stages of a case should a claim be submitted.
Contact the Employment Team today.