Does an employee have the right to record a meeting?
You have a difficult employee. They were your star pupil until they had an accident at work, at which point the relationship started to deteriorate. The employee asserted their statutory right and issued a personal injury claim against you for the alleged “injury at work”, after which they became increasingly difficult to work with. You are getting to a point where you do not know how much more you are going to be able to put up with, and there is no sign of the relationship improving.
We all know that you cannot dismiss an employee for bringing a personal injury claim against their employer; therefore when this employee is found misappropriating company funds, the thought that goes through your head is “We have got them! Finally we can dismiss them!”
The employee is subsequently called into to attend a disciplinary hearing for alleged gross misconduct. The employee continues to be difficult; however, the hearing takes place and the outcome is summary dismissal for gross misconduct.
The employee appeals which is not upheld following a hearing. A few weeks later, the Tribunal papers arrive on your desk and, to your surprise, the employee is claiming that they have been unfairly dismissed because of the statutory right which they had asserted (bringing a claim against the employer is a right an employee has, in this case a personal injury claim).
The claim is vigorously defended and you maintain that reason for the dismissal was as a result of the misappropriation of company funds. You have the evidence to support this and your legal representative is confident that you have a strong defence based upon this.
A few days later, your solicitor rings you and advises that there is a problem. The employee secretly recorded the hearing and even left the recording device running after the hearing, during which they caught the chair of the meeting making it very clear that they are using the misappropriation of company funds as a facade and the actual reason for dismissal is due to the personal injury claim that the employee has issued against you.
Are covert recordings admissible as evidence?
An employee does not have the right to record a meeting without the employer’s consent.
When providing consent, the employer should consider the reason for the employee’s request. If say, for example, the employee suffers from a disability which prevents them from taking effective minutes, then allowing the employer to record the meeting in this case would be considered a reasonable adjustment that the employer would be expected to make.
However, what happens when an employee secretly records a meeting? Is this evidence admissible as evidence during the course of Tribunal proceedings?
Technically speaking, a covert recording can be considered to be a breach of the right to privacy under the European Convention on Human Rights and the Data Protection Act 1998.
With that in mind, one would think that the covert recording in cases like this would not be considered as being admissible as evidence during Tribunal proceedings?
The answer is Yes and there is case law to supports this view.
The Employment Tribunals take a generous view on what evidence is admissible and will normally only consider how relevant that evidence is to the issues in the particular case. Tribunals are not normally too concerned in relation to how the evidence has been obtained.
However, secret recordings of private conversations are treated slightly differently and may not admissible unless the recordings revealed evidence of discrimination.
The case of Punjab National Bank -v- Gosain clarified that private deliberations may be admissible as evidence. However the deliberations would have to fall well beyond what could be considered to be legitimate private deliberations for the purpose of reaching a conclusion on the outcome of the claimant’s disciplinary/grievance.
This article may take a lot of employers by surprise and is an important reminder, given the increasing popularity of the ever increasing selection of electronic devices with recording functions. So when holding a disciplinary hearing (or any formal meeting or that matter), here are a few of my top tips for employers to consider:-
- Always try to ensure that any post hearing private deliberations take place in a separate to room to where the disciplinary hearing took place and consider an adjournment overnight where necessary.
- If you are deliberating in the same room where the disciplinary took place, then ensure that you do not say anything that you would NOT want the Tribunal to hear.
- Consider updating your policies, which should make it clear that covert recording are prohibited and may be considered an act of gross misconduct. The employee can be reminded of this at the commencement of the disciplinary hearing.
- At the start of any formal hearing, ask the employee to switch of their mobile phone if they have one on their person during the hearing.