“Just be careful, it is likely they will be covertly recording the meeting on their mobile phone”.
“Surely they can’t do that??”
The above conversation is one I seem to have on a daily basis with clients who are chairing disciplinary or capability meetings with employees. So, why do employees covert record meetings? Is it lawful? Can the evidence be used in a tribunal? What can we do to stop it?
Why do employees covert record meetings?
There are two main reasons. The first, and quite frankly most common, is to catch out managers or colleagues who might say something that the employee doesn’t like. The individuals then have hard evidence of the statement which can be used in future employment tribunal claims.
The second reason is that employees may simply wish to have an accurate recording of a meeting. Think about how many times an employee has disputed written minutes from a meeting. An employee may also record a meeting because they have memory issues or do not have anyone to accompany them to a meeting.
It is worth noting at this stage that Tribunals do take into account the reasoning for the recording when considering the same at a future hearing. More on this below.
Is it lawful and can it be used at a Tribunal?
The short answer is yes. The general rule which has arisen over the past 15 years or so is that, whilst covert recording is deemed to be in bad taste, recordings of any part of a meeting where the employee was present may be admissible before an employment tribunal. There are a few caveats to this however:
- The information must be relevant: Tribunals will not allow, for example, a full 3 hour recording of a meeting to be played in Tribunal. From our experience, the Claimant will be asked to narrow down the specific parts of the recording they wish to rely on, which should be of minimal length. The Tribunal will also usually request that a full transcript of the meeting is prepared by the Claimant for the Tribunal bundle.
Top tip: do not rely on the Claimant’s transcript. Have your version with amends marked up for the tribunal.
- Private discussions are generally inadmissible:It is not uncommon for employees to “accidentally” leave their mobile phone in their coat pocket when leaving the room to allow for the disciplinary chair to consider an outcome.
There has been varying case law on this point. However, in general, private deliberations (usually between the meeting chair and HR and/or lawyers) are deemed to be inadmissible. However, where there have been private discussions which fall outside of what is being considered in the disciplinary hearing, an employee may be successful in applying for the audio to be heard. In Punjab National Bank (International) Ltd and others v Gosain UKEAT/0003/14 the EAT allowed covert recording of the private deliberations to be heard as it included a senior manager, not involved in the disciplinary decision making, instructing the chair to dismiss the employee.
Top tip: the chair of the meeting should always leave the room to hold private discussions.
What can we do to stop it?
There are a number of things employers can do to deter employees from covertly recording meetings. However, short of strip searching the individual (not advised), it is nearly impossible to eliminate the risk altogether.
- Update your disciplinary policy to specifically prohibit covert recording.
- Make the employee aware in the invite letter and again at the beginning of the meeting that covert recording is not allowed.
- If an individual requests that the meeting be recorded, ask them why. It may be that they are classified as disabled under the Equality Act and such a recording would be seen as a reasonable adjustment.
Phoenix House Ltd v Stockman
Whilst drafting this article, coincidentally, an important case was heard in the EAT on the very topic of covert recording.
In Phoenix House Ltd v Stockman, Ms Stockman was dismissed for Some Other Substantial Reason (SOSR) owing to a clash of personalities. Upon bringing a claim at the employment tribunal, the employer subsequently discovered that Ms Stockman had covertly recorded an earlier meeting with HR. Ms Stockman was successful in her claim for unfair dismissal. However, the employment tribunal reduced her compensation by 10% owing to the covert recording. The employer appealed, stating that, as it was now clear that the employee had used covert recording during her employment, they would have dismissed her fairly for that reason and compensation should, therefore, be reduced by 100%.
In the lengthy EAT judgment, employment judge HHJ Richardson wrestled with the reasoning for Ms Stockman making the recording. The EAT highlighted their belief that there was a difference between an employee who makes a recording for the purposes of entrapping an employer and an employee who makes a recording simply to keep a record of proceedings. In their opinion, Ms Stockman fell into the latter category.
The EAT further relayed that in circumstances where such a recording was made for record keeping, rather than to trap an employer, it is unlikely that such conduct could be classed as gross misconduct. Every case will rest on their own facts. However, it is unlikely that a covert recording made to simply keep a record of proceedings would be enough to breach trust and confidence in order to justify dismissal, especially in cases where an employer does not have a specific policy on covert recording.
The EAT dismissed the employers appeal and the 10% reduction remained.
One of the key points to take away from this case is that, whilst it is highly unlikely that a covert recording for recordkeeping purposes could be classified as gross misconduct, an employee who has lied about recording in bad faith and/or where the meeting contains confidential company information, is likely to be given a short shrift by an employment tribunal. An employer will also be in a much better position if they can point towards a disciplinary policy that clearly states that covert recording is a disciplinary offence which in certain circumstances may amount to gross misconduct.
What does this mean for your or your business?
All managers should be made aware of the risk of covert recording in the workplace and the risks arising from the same. From my experience, over 50% of disciplinary meetings are now covertly recorded and I know of Claimant lawyers who advise every individual to covertly record meetings.
If you are facing a claim with covert recording disclosure, ask your legal team if there is any way that the recordings may be inadmissible.
What should you be doing now?
Employers should be reviewing their disciplinary policies. If there is not a paragraph in there regarding covert recording, have one inserted. Make it clear that covert recording can be a misconduct offence and in certain circumstances, may be classed as gross misconduct.
Whilst the additional measures in the disciplinary policy will do little to assist when an already dismissed employee attempts to raise the audio evidence at a later tribunal hearing, it may well be enough to deter individuals from making such recordings in the first place.
Recommended Reading A copy of the employment appeal tribunal judgment is available here.