Can employees record disciplinary discussions?

22 February 2017

The age of technology has brought with it a new type of nightmare for employers. Portable devices such as tablets and mobile phones have created an opportunity for employees to easily secretly record meetings or conversations in the workplace. This had led to an increase in employees making secret recordings with the intention of using these recordings in Employment Tribunals.

Picture this scenario

John has had a lot of time off for sickness, generally on a Monday or a Friday which his employer is finding very difficult to manage. Before this is addressed, John is caught dipping his fingers in the till and his employer decides to discipline him for potential gross misconduct. John secretly records the disciplinary and appeal meetings including the discussions during the breaks. During one of these discussions, the Managing Director flippantly says that it would be a good opportunity to get rid of John due to his sickness absence.

John is eventually dismissed and a few weeks later, to the company’s surprise, they receive an Employment Tribunal claim. In his claim, John states that he has secret recordings backing up the fact that he was dismissed due to his sickness and not for gross misconduct.

Will an Employment Tribunal allow secret recordings to be submitted as evidence?

Potentially yes. Employment Tribunals may consider the secret recording to be distasteful, however they can allow them to be admissible where relevant. This can include secret recordings of private deliberations of the disciplinary panel members, particularly if the recordings reveal evidence of discrimination and also taking into account public policy/public interest.

The fact that the evidence was gathered secretly does not mean that it will not be allowed. If the Employment Tribunal think that the evidence is relevant, then it will be admitted provided that the employer is given the evidence before the hearing.

In our scenario with John, it is highly likely that the Tribunal would admit the secret recordings. The careless remark made by the Managing Director could potentially be problematic as it may cast some doubt on the actual reason for dismissal.

What can employers do?

If you don’t want any recording of the proceedings:

  • At the outset of the meeting, make it clear to all parties that recording without consent is not permitted.
  • Ask all parties to switch off mobile phones or any other portable devices.
  • During breaks, ask parties to remove their personal belongings from the room. This reduces the risk of recording devices being left in the room when discussions are taking place.

If you decide to record the proceedings:

  • Make this clear to all parties and provide typed transcripts after the meeting.
  • Keep the recordings in case they are needed in the future to check legitimacy.

 

However, the best advice to any employer would be to always assume that you are being recorded and that what you say will be admissible in an Employment Tribunal.

If you would like to find out more on how Citation can help, call us on 0345 844 1111 or contact us today.

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