Modern technology means that it is straightforward and increasingly common for employees to record workplace meetings on their mobile phones. But are such recordings admissible as evidence in the employment tribunal? And can employees be disciplined, or even dismissed, if the recordings are made without permission? This article examines these two issues in turn.
Are the recordings admissible as evidence in the employment tribunal?
Where both employer and employee are present – recordings of meetings where both employer and employee are present are generally admissible where the employee can show the recording is relevant to the issues to be decided in the tribunal. (Note that the employee must disclose the recording in good time to enable the employer to properly review it before the tribunal hearing – see “Procedure for applying to tribunal” below)
Where the employee is absent - recordings of private discussions of the employer will generally not be admissible on the grounds of public policy (ensuring a full and frank exchange of views on the understanding that deliberations conducted in private remain private).
However, the balance between conflicting public interests (ensuring full and frank discussions on the one hand versus the importance of considering the issues on all the evidence available on the other) may be different if the claim involves discrimination and the recording provides the only evidence of discrimination. In such a case, the recording may be admissible. However, where there is ample other evidence to support the discrimination claim, and the recording does not directly support the claim, the recording may not be admissible.
- Procedure for applying to tribunal to disclose secret recording – the employee should provide the employer with the recording and a transcript at an early stage of the proceedings. If he or she leaves it too late, the recording may be ruled inadmissible. If the employer objects to its admissibility, the employee should make an early application to the tribunal, explaining the relevance of the recording to the issues to be determined and presenting the tribunal with a transcript.
- Note of caution – an employee who makes a secret recording of an internal meeting may be penalised when it comes to the calculation of their compensation in the event that their claim is successful.
- Can an employee be disciplined for recording an internal meeting without permission?
- It is good practice for the employee to inform the employer if they intend recording a meeting.
- Failure to inform the employer in advance generally amounts to misconduct
- Secret recordings will not necessarily amount to gross misconduct – all the circumstances will need to be taken into account including the employee’s reason for making the recording; the damage done to the employer as a result of the information being recorded without their knowledge and whether making unauthorised recordings is cited as gross misconduct in the employer’s disciplinary procedure. If the circumstances are such that it does amount to gross misconduct, the employer may have grounds for dismissal
- It is relatively rare for unauthorised recordings to appear as gross misconduct in an employer’s disciplinary procedure
- Recordings can take place for a variety of reasons and it is not to be assumed that the employee wishes to entrap the employer e.g. the employee may simply wish to keep a record of the meeting; to protect him- or herself from the risk of misrepresentation or to enable him or her to get legal advice
- Each case should be considered on its facts and the employer should not adopt a broad-brush approach.
Disclaimer: This blog is for general information only.
Nothing on this blog constitutes formal legal advice or gives rise to a solicitor-client relationship.