Managing a formal meeting with an employee, such as a disciplinary hearing, can be challenging at the best of times. But how about if you suspect every word is being secretly recorded? With advances in technology, including smartphones, covert recording (audio, or even visual) is now an issue we are increasingly asked about by both employer and employee clients. But what is the audio recordings law on this?
I thought covert audio recording wasn’t allowed?
The assumption used to be that if an employee took a covert recording of a meeting with their employer, that recording would be inadmissible as evidence in any later tribunal proceedings.
So what changed?
If an employee secretly records an internal meeting or hearing with their employer, the general rule established by case law now is that:
- the recording of any parts of a meeting where the employee was present may be admissible at a tribunal, if the tribunal believes it is relevant; but
- any covert recording of any private discussions of an employer’s disciplinary panel (when the employee is no longer in the room) will not be admissible, on grounds of public policy – but an exception was identified in the case Punjab National Bank v Gosain (see below)
What does the audio recordings law say?
Amwell View School v Dogherty is the leading case. The Employment Appeal Tribunal (EAT) held that the employee’s covert recording of her disciplinary hearing could be used in evidence before the tribunal. She had also left a device to record private deliberations of the panel. That part of the recording however was excluded from consideration on grounds of public policy. The EAT did comment however that, had the case involved discrimination, their decision might have been different. For example, the panel had made a decision and the recording of its private deliberations provided the only evidence of possible discrimination.
Have there been any cases where the discrimination point has been considered?
In Williamson v Greater Manchester Police Mr Williamson took a secret recording of panel discussions at his capability hearing, while he was out of the room. Although his claim involved disability discrimination, the EAT did not allow the recording as evidence. They said there was ample other evidence to support his claim, and there was nothing in the recording that directly supported his claim of discrimination.
So, has the EAT allowed evidence from any private panel deliberations?
Yes – In Punjab National Bank v Gosain a recording of the panel’s private discussions was admitted. Where this case was seen to be different from Dogherty was that the alleged comments made by the panel while the employee was out of the room, which were not actually part of their decision-making on the matters in hand and were therefore admissible.
If an employee records me without my permission, aren’t they breaching my legal rights?
An employee covertly recording an individual will probably amount to collection and processing of ‘personal data’ under the UK General Data Protection Regulation (UK GDPR). However, the employee may argue that they are subject to the ‘household exception’ where the recording was made for their own personal use. Even if this exception were to apply, the employee will still be bound by other laws.
An individual being recorded may try to assert their right to a private life under the Human Rights Act has been breached. In Amwell, the school tried to argue that the covert recording breached the governors’ right to privacy set out in Article 8 of the Human Rights Act. It was held in that particular case that Article 8 did not apply. The school governors were held to have waived their right to privacy as they were seen to be acting in a quasi-public role.
The employee will also be bound by the rules of evidence when using covert recordings in litigation and subject to duties of confidence if they intend on disclosing the recording.
Any other cases I should be aware of?
In Vaughan v London Borough of Lewisham the employee had built up 39 hours of secret recordings! On the facts, the EAT agreed that this evidence could not be used. However, they also said that if the employee had provided a transcript of what she had recorded, and a clear explanation of the relevance of that evidence, their decision may have been different.
In Fleming v East of England Ambulance Service NHS Trust an employee took covert recordings of conversations between members of a disciplinary panel, during breaks in the proceedings. They were allowed to rely on these recordings (except for evidence that was covered by legal privilege).
The EAT in Phoenix House Ltd v Stockman took a view that an employee secretly recording an internal meeting will generally constitute misconduct, but not necessarily a breach of the implied term of trust and confidence. This case also gave guidance on how an employee who makes a covert recording of an internal meeting might be penalised by way of the calculation of compensation if they are successful in their claim.
It might be possible for an employer to obtain an injunction to limit use of a covert recording. In Syncreon Automotive (UK) Ltd and others v Unite the Union and another, the High Court granted an interim injunction to prevent the union, Unite, from making use of confidential information it had obtained of a management discussion due to a recording device being left in a room during wage negotiations.
What if our policy bans covert recording?
If you prefer to say in your policy that you don’t want meetings to be recorded, you can do so. However, be prepared that a tribunal could still allow a covert recording as evidence, if relevance can be shown.
What if I actually want to record a meeting or hearing with an employee?
Some employers prefer to take a full audio recording, finding it more efficient for the recording then to be converted into a full transcript (rather than someone taking hand-written notes of key points). If this is your preference, our advice is to obtain the employee’s consent before recording; and to consider stating this preference in any relevant policies (disciplinary, grievance etc).
With more meetings taking place by video, Acas guidance developed during the pandemic also makes clear that meetings held by video may be digitally recorded with the agreement of everyone involved.
What if I want to covertly record a meeting with an employee?
Having a designated note-taker (or recording with consent) is preferable. But this is a question we have been asked by employers. With the balance of power and trust in an employer-employee relationship, our view is that a tribunal would judge an employer much more harshly on this point. A covertly recorded employee is likely to argue that any evidence gathered in this way is admissible. An employee discovering that they have been covertly recorded may also have potential recourse to a constructive unfair dismissal claim, or for a breach of their privacy under relevant legislation including the Privacy and Human Rights Act 1998.
There is little guidance in employment law as to whether or not covertly recorded evidence by an employer would be considered admissible for the purpose of employment tribunal proceedings. Covert monitoring by employers in the workplace is dealt with in part 3.4 of the Employment Practices Code issued by the Information Commissioner prior to the introduction of the UK GDPR/DPA 2018 regime. This guidance continues to be indicative of the ICO’s approach to data protection issues and is due to be updated to reflect the new regime shortly. This Code highlights that it will be rare for covert monitoring of employees in meetings to be justified and that it should only be done in exceptional circumstances, for example, as part of a specific investigation into suspected criminal activity. The Code advises employers undertake “impact assessments” to achieve a balance between workers having privacy in the workplace and protecting the interests of the business.
There are examples of when covert recording of an employee has been admissible, although employers are advised to carefully consider if on balance this is necessary and justified. For example, in McNicol v Balfour Beatty Maintenance, an employee unsuccessfully tried to exclude video evidence provided to him by his employer just before a hearing. The case involved disability discrimination and the video footage was to evidence the employee having mobility that was inconsistent with his disability claim. The Court of Appeal decided the evidence was admissible.
These cases show that tribunals face a balancing act on this question, and decisions on admissibility rest on the facts of each case.
- Managers and HR should assume they might be being secretly recorded, and that those recordings may be allowed as evidence by a tribunal (even in some cases if a panel believes they are deliberating in private). Train your managers and HR staff accordingly.
- Include a clear stance on audio (and video) recording in HR policies. We suggest stating that recording is expressly prohibited; or only by mutual consent of both parties (although this may be insufficient to dissuade an employee determined to record you).
- If you prohibit recording, remind the employee before a meeting starts that they must not record it, and ask them to confirm that they are not doing so. Should the employee say no, and then later seek to rely on a recording, a) they may be guilty of a separate act of misconduct, for which they could potentially be disciplined, and b) their credibility may be lessened in the eyes of a tribunal. However, the evidence recorded might still be admissible.