27 March 2020 - Article
In 1971 when Q kitted out 007 with a voice algorithm recorder, Bond was well ahead of his time. But 40 years after the release of ‘Diamonds are forever’, it is commonplace for employees to use iPhones and BlackBerries to record both formal meetings and even casual conversations. Employers have been slow to protect themselves against this and many are being caught out.
From the employee’s perspective, this is a legitimate and easy way of gathering crucial evidence for employment tribunal proceedings which may otherwise be lost. From an employer’s perspective, the use of covert recording equipment will feel like a gross breach of trust and confidence. But knee-jerk responses are generally inadvisable.
Once a recording has been made, it is disclosable if litigation follows, but the Tribunal will not listen to all covert recordings. The Tribunal will first need to decide whether to admit the evidence. The Tribunal has a wide discretion to determine admissibility and will usually admit evidence if it is relevant to an issue between the parties. This is likely to be the case where the precise words used or the way they are used is of critical importance to an issue in the case. Hence recordings may well be relevant to discrimination and whistle-blowing cases but are likely to be less relevant to unfair dismissal cases, where the Tribunal’s role is not to re-try the original dismissal but to assess whether the employer’s decision was within the band of reasonable responses.
What is clear from the case law is that Tribunals recognise that there is an important public interest in the parties complying with certain ‘ground rules’ in respect of disciplinary and appeal proceedings. Where deliberations are in private, and if they do not clearly disclose evidence that is critical to the case, a Tribunal is unlikely to admit covert recordings of them. But there will be circumstances in which a covert recording discloses such an important fact (such as discriminatory views that the employer denies expressing) that a Tribunal will allow it to form part of an employee’s case, even though the employer did not know at the time that the recording was being made.
To deal with the rise in covert recording, all employers should :
- make it clear in their handbooks and in particular the disciplinary and grievance procedures that covert recordings are an unacceptable breach trust and confidence and are likely to result in disciplinary action;ensure that HR /managers at the outset of any formal meeting expressly ask the employee if he or she is covertly recording the meeting;
- ensure that a trained, trusted and competent note taker is available to take notes of all formal meetings so that employers can legitimately reject a request by an employee to record evidence. (Minutes of the meeting should be made available to the employee);
- be consistent about handling covertly recorded evidence so that if employers do consider this to be a breach of trust and confidence, they discipline the employee in respect of such behaviour;
- ensure that managers are trained to conduct meetings (even informal ones) in a way that does not expose the employer to unnecessary risk.