05th September 2016

Beware of the Covert Recorder

It is a common misconception that covertly obtained recordings in the context of disciplinary/grievance hearings which are made without the knowledge of all present is inadmissible in Employment Tribunal proceedings.

The reality is that the Tribunal has a wide discretion over what evidence can be considered and as is often the case, the answer is really fact specific and it depends on the circumstances of each individual case.

Generally speaking, an employee does not have the right to record a meeting and it is entirely acceptable for an employer to refuse to allow an employee to make an audio recording. However, with the advance of technology one does not have to be particularly skilled in the art of deception to successfully record a meeting without the knowledge of the other attendees and it is becoming increasingly common. Covert recording of a conversation where all parties present are party to the conversation and do not provide their consent to such recording is not prohibited.

The Employment Appeal Tribunal (EAT) has already confirmed that whilst the fact that the information has been obtained deceitfully and covertly does not mean that it cannot be heard at all (Chairman & Governors of Amwell School v Dogherty reaffirmed in Vaughan v. London Borough of Levisham). When making a decision as to whether to allow recorded evidence, the Tribunal takes a rather generous view on what evidence is admissible.

So when will covert evidence be allowed?

Tribunals should hear all evidence that is relevant, and the legal position can be summarised as follows:

Open hearings – even if an employee secretly records a hearing without the consent of all parties present, this is likely to be admissible as it is essentially the same as a verbatim note being taken.

Private deliberations – covert recording of these ‘closed’ sessions (i.e. understood by all parties to be private conversations amongst the adjudicating panel) will not usually be admissible. However, these will be considered where they assist the Tribunal in reaching decisions upon issues which are relevant to the issues to be determined. For example, claims involving discriminatory or malicious conduct.

Points to consider and tips for those involved in disciplinary/grievance hearings

For employers, the following learning perhaps arises: covert recordings are more and more likely and will not necessarily be ruled inadmissible.  Remarks beyond the normal and proper process of deliberation or management should be discouraged (and will be particularly susceptible to admission).

“Put simply, managers should not say anything within the context of a meeting that they would not want payed back in front of a tribunal”.

Keep accurate notes – whilst pointing out the obvious here, it is important that detailed notes are made both in respect of open hearings and private discussions.

Move before deliberation – it is recommended that any decision makers relocate before deliberating rather than ask for the employee to leave the room. This will completely eradicate all risk of such private discussions being recorded.

From a practical perspective, express exclusions on the recording of meetings without permission can be included in handbooks/policies and employees can be asked, at the beginning of meetings/hearings, to confirm that they are not recording (the impact of an employee misleading by response may be significant).

*All information is correct at the time of publishing

Carley Kerrs-Walton

Napthens LLP – Employment Law Specialist

Carley is one of our Employment Law Specialists from Napthens Solicitors. Read more

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