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 regularly asked about by both employer and employee clients.

I thought covert 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 made in the case Punjab National Bank v Gosain (see below).

What does the case 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.

What does the case 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.

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 discussion was admitted. Where this case was seen to be different from Dogherty was alleged comments made by the panel while the employee was out of the room, which were not part of their decision-making on the matters in hand.

If an employee records me without my permission, aren’t they breaching my human rights?

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 that Article 8 did not apply here.The school governors were held to have waived their right to privacy as they were seen to be acting in a public role.

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 he had recorded, and a clear explanation of the relevance of that evidence, their decision may have been different.

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).

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. Therefore any evidence gathered in this way is unlikely to be 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 the Privacy and Human Rights Act 1998.  

Key Points

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 (or 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 be disciplined, and b) their credibility may be lessened in the eyes of a tribunal. However, the evidence recorded might still be admissible.

Mark Roby is in our employment team in Truro. If you would like to contact the team, please call 01872 265100 or email employment@stephens-scown.co.uk.