It is exceptionally easy for anyone with a mobile phone to covertly record a conversation in the workplace.
In the context of a disciplinary or grievance hearing, an employee may wish to record the conversation to ensure that he has an accurate record of what was said; and that any record produced by your business can be carefully checked and reflects the actual conversation that took place (rather than the one you wished had taken place).
Occasionally, an employee will also attempt to secretly record the private deliberations of the disciplinary panel to find out whether your company is simply ‘going through the motions’ and has already made up its mind about the outcome.
The employee will want to use any recorded evidence which suggests that the procedure is unfair, or that he/she has been discriminated against in any Employment Tribunal claim.
Employment Tribunals have a wide discretion to determine what evidence is admissible. In practice, they will usually decide that evidence is admissible if it is relevant to the issues in dispute, has been disclosed in good time and would, if admitted, not breach the Human Rights Act 1998.
There have been a number of recent cases which have explored these issues. These indicate that employees will usually be able to adduce covertly recorded evidence where:
- All of the parties were in the room (ie: during the hearing itself); and
- The recordings are of the private comments of the manager or panel.
As a matter of public policy, employees will not usually be able to use recordings made of the deliberations of the manager or panel, unless they indicate that the decision was motivated by discrimination.
There appears to be a somewhat arbitrary distinction between allowing private comments to be heard, and disallowing those in which the employer weighs up the evidence that has been given before reaching a decision.
Should your business allow your staff to record hearings?
There are advantages to allowing staff to record hearings.
- It indicates that you have ‘nothing to hide’ and are confident that your managers will properly handle hearings.
- You can impose conditions about recording the hearing and only permit the actual hearing to be recorded (not the deliberations, or other private conversations);
- You can require the employee to assign copyright to your company to avoid the employee using the recording for other purposes (such as embarrassing your company on YouTube);
- You can require the employee to provide your company with a copy of the recording immediately after the hearing; and
Before the manager breaks to consider his decision, he should ask the employee to confirm that he/she has stopped recording. If the employee has not done so and records the deliberations of the manager, you will be able to use this to suggest that the employee has given dishonest answers and is not therefore a credible witness.
The employee’s agreement to these conditions should be recorded in writing.
Even with these checks in place, there are further steps that you can take to minimise risk to your business:
- It is sensible for the manager or panel to deliberate in a different room. If this is not possible, you should ask the employee to wait outside and make sure that he/she has removed all of their possessions.
- Remind managers and/or the panel of the need to be careful about what they say and make sure that all comments are appropriate. It might be helpful to ask them to assume that everything that they say could be recorded and potentially used against the company.
- Provide training to managers to reinforce these messages.
- If your business decides to potentially allow its staff to record hearings, the relevant policies should be amended. It would be sensible to require the employee to seek permission and provide you with the opportunity to refuse any request, without the need to give a reason.
However, if you decide not to allow your staff to record hearings you should make it clear in all relevant company policies that recording any hearing is not permitted and may in itself be treated as an act of misconduct. In addition, make sure that this is explained to the employee at the beginning of the hearing and ask the employee to confirm that he understands this and is not recording it. If the employee goes ahead anyway, the business will be able to attack the employee’s credibility (as indicated above).