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Admissibility of covert recordings in the workplace

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Calendar June 10, 2024

The use of covert recordings for meetings and discussions in the workplace has become more prevalent, largely due to advancements in technology such as mobile phone voice recording features and the rise of remote work. However, the legality and admissibility of these recordings as evidence is a complex issue.

What is covert recording?

Covert recording refers to the act of recording conversations or meetings without the knowledge or consent of all parties involved. An example would be an employee recording a meeting by discreetly using their mobile phone hidden from view such as under a desk.

Both employers and employees might have legitimate reasons for wanting to record conversations or meetings. Employees, in particular, might resort to covert recording if they believe they are being discriminated against or treated unfairly and want to gather evidence for HR meetings or even at an Employment Tribunal.

Legality of covert recordings

The legality of covert recordings depends on the context. Generally, such recordings are considered misconduct unless they are intended to expose serious issues such as criminal activity or significant misconduct. Data Protection laws typically allow covert recordings only for the purpose of preventing or detecting criminal actions or malpractice.

Even in such cases, courts will assess whether the covert recording was necessary and if the information could have been obtained through other means.

In Employment Tribunals, secret recordings by employees may be accepted as evidence if they are deemed relevant to the case.

The general rule is that the recording of a meeting where all parties are present may be admissible if relevance can be shown. However, recordings of private discussions by the employer’s panel are usually inadmissible unless there are exceptional circumstances.

Employment Tribunal’s perspective on covert recording

Rule 27 of the Employment Tribunal Rules of Procedure allows the tribunal to admit any evidence it considers relevant, regardless of its admissibility in a court of law. This broad rule gives the tribunal discretion, i.e. the choice, to admit covert recordings as evidence if they are considered relevant to the case.

Are covert recordings by an employee a breach of trust?
While employers may feel that covertly recording a meeting or conversation is a breach of the implied term of trust and confidence (the employer must not conduct itself in a manner that is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee), the Employment Appeal Tribunal (EAT) decided otherwise in the case of Phoenix House Ltd v Stockman (2019).
In this case, Mrs Stockman complained of unfair treatment by her employer, Phoenix House. Mrs. Stockman covertly recorded a meeting with the head of HR and revealed the recording during her successful unfair dismissal claim. Her employer appealed against Mrs Stockman’s compensation award, arguing that making the covert recording was misconduct and it breached the implied term of trust and confidence.
The appeal was dismissed and the EAT stated that the employee may have recorded the meeting to keep a record or protect her from any risk of being misrepresented when faced with an accusation, or to enable her to seek advice from a union or elsewhere.
Covert recordings do not necessarily amount to a breach of confidence or trust although it can be argued to do so. Employment tribunals consider all surrounding circumstances in a claim, including an employee’s reasoning for making the recording, their ‘blameworthiness’ (were they specifically informed not to make a recording, or did they record it out of fear?), the subject matter of the recording (was it confidential or something that would have been shared anyway?) and evidence of the employer’s attitude towards such conduct.

When covert recordings are inadmissible

Covert recordings do not always provide the evidence employees hope for.
In Williamson v Chief Constable of the Greater Manchester Police and another, the EAT ruled that the employee’s secret recording of the panel’s discussions during his capability hearing, conducted while he was out of the room, was inadmissible as evidence. The EAT noted that there was ample other evidence to support his claim and nothing in the recording directly supported his discrimination claim.
In Vaughan v London Borough of Lewisham and Others, the EAT upheld a tribunal’s decision to refuse an employee’s request to rely on 39 hours of secret recordings of meetings and discussions with her employer and colleagues. The tribunal considered that the employee had not disclosed the recordings to her employer and was only willing to explain their relevance in general terms. Consequently, the tribunal could not properly assess the relevance of the evidence. However, the EAT indicated that the decision might have been different if a transcript and clear explanation of relevance had been provided.
The EAT criticised the tribunal’s view that admitting covert recordings required the employee to pay for independent transcription, considering it an unnecessary expense. They suggested that any discrepancies in transcripts could be clarified by the employer listening to the relevant parts of the recording.

The importance of disclosing recordings and transcripts

As demonstrated in Vaughan v London Borough of Lewisham and Others, if an employee intends to rely on covert recordings as evidence, they should disclose both the recordings and a transcript to their employer early in the proceedings. The timing for this disclosure can vary, so seeking legal advice is crucial.
If the employer objects to the admissibility of the evidence, the employee should make an early application to the tribunal, explaining the relevance of the recording to the case and providing a transcript.

Advice on covert recordings for employers

Updating Policies

Employers should consider specifying in their grievance and disciplinary procedures that employees are explicitly forbidden from covertly recording meetings or discussions with colleagues without their knowledge or consent.
The policy should clearly outline what constitutes misconduct and the potential disciplinary actions for such conduct, providing examples to establish clear ground rules for tribunal hearings.
For employers seeking advice on updating workplace policies or employees needing assistance with employment law matters, please contact us for expert employment law guidance.
Contact us now for a free 15-minute consultation on 0330 221 0684 or e-mail us at [email protected].

By Suraj Purohit.
Employment Paralegal at Kalra Legal Group.
04/06/2024.

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