Audio Recordings In Disciplinary Proceedings

What can you do if one of your employees tape records a meeting or disciplinary without asking or telling you first?

With the increased amount of technological options for easy audio recording, employers are often being asked if an employee can record meetings or hearings. In other cases, employees may choose to record the meeting without asking first, creating a recording that the employer only finds out about much later, such as when the employee brings an employment tribunal claim.

Covert recordings of workplace discussions are likely to be admissible unless there is a legal basis for their exclusion such as privilege or public policy. The general rule that the Tribunals will apply when considering whether to allow a claimant to rely on their covert recordings of meetings is whether or not the recordings are relevant to the case. If they are then they will usually be allowed in as part of the proceedings as long as the claimant complies with the usual disclosure duties (i.e. they provide the respondent with a copy in advance of the hearing).

It will not matter whether or not the employee had the permission of all or any of those present to make the recording or whether such recordings were not permitted by the employer’s policies or the employee was told that they were not allowed to make such a recording and did so anyway.

In addition, the Tribunal will also consider the purpose behind the employee making a covert recording. In Phoenix House Ltd v Stockman in 2020, the Employer only became aware of the covert recording by Stockman in her unfair dismissal claim. They said this meant they would have dismissed her for gross misconduct if they had known about her recording.

The original ET disagreed and said her recording was not a breach of the implied term of trust and confidence (that exists in all employment contracts). The Tribunal found that Stockman made the recording not for entrapment purposes, but that she was flustered at the time of the meeting. Although Stockman succeeded in her claim the Tribunal applied a 10% reduction to the basic and compensatory award as a result of the covert recording. The judgment was appealed and the Employment Appeal Tribunal agreed and said to ask why the employee had recorded the meeting (i.e. the purpose of the recording), which the ET had done, was the correct approach.

Audio Recordings In Disciplinary Proceedings

Recent cases

1) Punjab National Bank v Gosain

Prior to the claimant’s resignation and subsequent claims for sexual harassment, sex discrimination, and constructive unfair dismissal, she attended a grievance and a disciplinary hearing and without the respondent’s knowledge, she recorded the entirety of the meetings, including the private deliberations of the respondent.

The claimant alleged that the recordings of the private deliberations provided evidence in support of her discrimination claims in that they recorded that the managing director of the respondent had given an instruction that she should be dismissed, that the grievance officer said he was skipping the key issues raised in the claimant’s grievance concerning being allowed to take breaks and her pregnancy and that during the disciplinary hearing break a comment was made in Punjabi concerning the claimant’s anatomy which was derogatory.

The view taken was that although these comments were made during the respondent’s private deliberation time, they were not part of the deliberations in relation to the matters under consideration and therefore they were admissible. This view was supported by the Employment Appeal Tribunal (EAT).

2) Amwell View School Governors v Dogherty

The claimant had secretly recorded her appeal hearing. The recording covered the “open” parts of the proceedings where the claimant was present and also, the private deliberations of the respondent during breaks in those procedures.

The EAT agreed that the recordings of the “open” parts of the hearing were relevant to the case given that the claimant’s unfair dismissal claim alleged that the appeal panel had behaved improperly in its approach to the appeal. They also acknowledged that the respondent had made its own note and would not have objected had the claimant asked or proceeded to make her own note of the meeting.

However, the EAT found in this case that a superior public policy concern arose in respect of the recordings of the private deliberations and that this was:

In giving their decision, the EAT did say that their view might have been different if an inadvertent recording of private deliberations had produced incontrovertible evidence of discrimination in a discrimination claim.

3) Williamson v Chief Constable of Greater Manchester Police

The claimant failed to successfully complete his probationary period as a police constable and was not considered suitable to progress to full police constable. By way of reasonable adjustment for his disability (depression), the claimant sought a civilian role with the respondent instead.

The claimant audio recorded a formal capability meeting on his mobile phone including discussions that occurred when the claimant and his representative were out of the room.

The EAT had to decide whether the Employment Tribunal Judge had been correct to exclude the recordings from the evidence in the case. They decided he was and excluded the entire recording and resulting transcripts on the basis that they were not relevant to the issues in the case.

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