Employers are often asked if an employee can record meetings or hearings, given the growing number of technical tools for convenient audio recording. In other cases, employees may choose to record the meeting without first seeking permission, resulting in a recording that the employer only learns about years later, such as when the employee files an employment tribunal claim.
Secretly recording conversations of meetings at work is likely to be allowed unless there is a legal reason to exclude them, such as privilege or public policy. When deciding to allow a claimant to rely on covert recordings of meetings, the Tribunals will evaluate whether the recordings are relevant to the case. If they are, they are usually admitted as part of the proceedings as long as the claimant fulfils the usual disclosure obligations.
It makes no difference whether the employee had the approval of all or some of those present to make the recording, whether such recordings were prohibited by the employer's regulations, or whether the employee was directed not to make such a recording but did so anyway.
The Tribunal will also evaluate why the employee made a covert recording. In Phoenix House Ltd v Stockman (2020), the Employer first learnt of Stockman's secret recording during her wrongful dismissal claim, which highlighted issues in employment law. They stated that if they had known about the secret recording, they would have fired her for gross misbehaviour, which could have led to a disciplinary procedure.
The original ET argued that her recording did not violate the implicit term of trust and confidence, which applies to all job contracts. The Tribunal concluded that Stockman recorded the meeting not for entrapment intentions, but because she was flustered. Although Stockman was successful in her suit, the Tribunal reduced the basic and compensatory award by 10% as a result of the covert recordings. The decision was appealed, and the Employment Appeal Tribunal agreed that asking why the employee taped the meeting, instead of what ET had done, was proper.
Audio recordings used in disciplinary proceedings
Below are recent significant cases in employment law regarding the recording of a meeting.
- Williamson vs Chief Constable of Greater Manchester Police
Because the claimant was unable to fulfil his probationary period as a police constable, he was not considered eligible to advance to the rank of full police constable. However, the claimant requested a civilian role with the respondent as a fair accommodation for his disability.
Using his mobile device, the claimant audio taped a formal capability meeting, including conversations that took place while he and his representative were outside the room.
They decided not to include the full tape or the transcripts that followed since they did not pertain to the matters at hand.
- Punjab National Bank vs Gosain
Before the claimant's resignation and subsequent claims for sexual harassment, sex discrimination, and constructive unfair dismissal, she attended a grievance and disciplinary hearing and secretly recorded the entirety of the meetings, including the respondent's private discussions.
The claimant argued that the recordings of the private discussions supported her claims of discrimination as it showed that the managing director of the respondent had instructed that she be fired, that the grievance officer had stated he was ignoring the major points of the claimant's grievance, including being allowed to take breaks and her pregnancy, and that during the break in the disciplinary hearing, a disparaging remark about the claimant's anatomy had been made in Punjabi.
It was decided that although these remarks were made by the respondent during private deliberations, they weren't included in the discussions of the issues at hand, therefore they could be included. In support of this conclusion was the Employment Appeal Tribunal (EAT).
- Amwell View School Governors vs Dogherty
The claimant had secretly videotaped her hearing on appeal. The recording included the claimant's presence during the "open" parts of the proceedings as well as the respondent's private discussions that took place during breaks.
The allegation in the claimant's unfair dismissal lawsuit was that the appeal panel handled the appeal in an unlawful manner, thus the EAT decided that the recordings of the "open" portions of the hearing were relevant to the case. The claimant might have taken her own notes of the meeting, and the respondent was also known to have done so. If the claimant had asked, they would not have refused.
However, the EAT concluded that the recordings of the private discussions posed a more pressing public policy issue, particularly in relation to the breach of trust in the workplace.
The EAT recognised in its ruling that they may have had a different opinion if an unintentional recording of private discussions had resulted in irrefutable proof of prejudice in a discrimination lawsuit.
Advice for Employers
#1. Develop a policy stating that hearings cannot be recorded, and remind employees of this at the very beginning of each hearing. This might not help you get the evidence removed if it is relevant, but it could damage the employee's credibility and may reduce the employee's potential settlement if their claim is successful.
#2. Watch out for gestures that could indicate an employee is recording the meeting, such as placing a phone on the table. If you see these, ask the employee to make sure that this is not the case and to turn off their phone. You may refuse to continue with the meeting until you are certain that the employee is not recording it.
#3. If there are distractions in the meeting, either ask the employee to remove their belongings from the room or, better yet, go to a different area to deliberate.
#4. It may be enticing to ease the tension of a difficult or protracted hearing by making a joke or statement about the employee or their representation after adjournment, but consider how this might sound to an Employment Judge!
#5. Keep in mind that statements made during private deliberations that are discriminatory, derogatory, or malicious are likely to be considered relevant to a case and should be revealed, especially if they relate to a disciplinary or grievance procedure.
#6. Inform the employee that any recordings taken without consent may be subject to the General Data Protection Regulations 2018 if sensitive information about others is involved, particularly in the context of employment law.
