If one person makes an audio recording of another person without the second person’s knowledge or permission, our automatic reaction is that that is not “fair”.
This is an issue that comes up reasonably often in the context of meetings between employer and employee, particularly disciplinary meetings.
What does the law say about these things?
The Employment Tribunal has no specific rules about the admissibility of covertly obtained evidence.
Employment Tribunals have a wide discretion to decide whether evidence is allowed to be used in proceedings before them.
Evidence will usually be admissible before a tribunal if it is relevant to an issue between the parties.
However, a tribunal still has power to exclude relevant evidence, for example, where the evidence:
- has been disclosed “too late” in procedure (especially if the disclosure would be going against any case management orders already made in the case);
- should be excluded on the basis of public policy (e.g. information that might be harmful to the State); or
- would be in breach of the Human Rights Act 1998.
It would usually be up to the party who disputes that the evidence should be allowed, to bring it up as a matter for preliminary consideration by the tribunal.
What about disciplinary proceedings, in particular?
Decided cases from the Employment Tribunal suggest that employees who clandestinely record meetings will only be able to lead as evidence recordings of parts of the hearing where the employee was (legitimately) present.
So, if a recording covered part of a disciplinary hearing where the employee was not present (e.g. where the decision makers at a disciplinary hearing are deliberating and discussing the case “in private”), that part of the recording would not be admissible.
Is there anything an employer can do to limit the scope for an employee using a recording of a meeting in evidence before a tribunal?
A possible idea here is for the employer to have in their disciplinary procedure explicit provision that it is not permissible to record a disciplinary meeting. The thinking would be that, as an employer, you might then be able to argue that if an employee went against that prohibition that, in itself, could be regarded as a disciplinary matter.
The employer could reiterate the rule against recording at the start of any disciplinary hearing and ask the employee for their verbal agreement at the outset of the meeting that the employee is not recording the meeting.
An express prohibition on making covert recordings – contained in an employer’s policies and procedures – could be helpful in making the employer’s position clear. The same would apply to reiterating the position verbally at the start of any disciplinary meeting.
However, you have to be careful not to overstate how helpful all this might be in practice.
It would not be possible to say that taking these measures would make it certain that any covert recording would be excluded as evidence in any subsequent tribunal proceedings.
As so often in the law, it would depend on the circumstances.
If the issue became a live one before a tribunal, the tribunal would have to balance up the competing interests on each side of the case.
At one end of the scale, if the employee’s recording showed, for example, that the employer had not produced accurate minutes of the meeting and had omitted important material or behaved in a domineering or bullying fashion at the meeting, that would be likely to outweigh any “breach of ground rules” by the employee.
At the other extreme, the fact that an employee proceeds to make a secret recording despite expressly agreeing not to do so at the start of a disciplinary meeting may undermine their own credibility, depending upon the circumstances. For example, it would not be helpful to the employee if it turned out that the recording did not support the view of the evidence that the employee claimed it did.
What is the best way to balance these competing interests?
It is now so easy to make secret audio recordings of reasonable quality that it might be better to proceed on the basis that all meetings should be recorded.
If an employer has nothing to hide – which should, of course, be the case – it is difficult to see why they should have any problem with a meeting being recorded.
Looking at it from the other side, if, as an employee, your employer places a ban on the recording of a particular meeting, you might be as well to record it anyway. As long as you keep it secret, you can retain the recording and then decide whether or not you will need to try to use it in evidence depending upon how other matters pan out. If the employer produces accurate minutes of the meeting, there is no reason for anyone ever to know that you recorded the meeting. On the other hand, if you consider that the employer has behaved unreasonably at the meeting or left important matters unrecorded in the minutes, you may want to be able to bring up the recording later.
It’s certainly a concern for you as an employee if, by recording a meeting, you are contravening an express provision in one of your employer’s policies. Against that, no one needs to know that you made any recording unless there would otherwise be a problem. And, of course, if you don’t record the meeting and you feel there has been an unfairness, you will only have your word against your employer’s, in the absence of any recording to back up your version of events.
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The above article was originally published on the Moray Employment Law website.