Covert Recordings at Disciplinary HearingsPosted in : HR Updates on 13 August 2014
Helen O'Brien writes:
It has become something of a hot topic as it appears that employees are increasingly resorting to the secret recording of meetings with their managers, with the intention of using the recordings as evidence in the industrial tribunal. This trend is likely to continue as there is a whole range of sophisticated recording devices for employees to use, including many mobile phones that can be used for this purpose.
An employer may be understandingly aggrieved if it finds out that an employee has covertly recorded a disciplinary hearing, especially if that organisation’s disciplinary policy expressly prohibits the recording by employees of such meetings. Can the employee then use the recordings as evidence at the industrial tribunal?
What does the Law Say?
There is no legislation that prohibits face-to-face recording. Covert recording is only regulated when it is carried out by public bodies, such as public authorities and the police.
The Role of the Tribunal
The industrial tribunal itself will decide whether or not the evidence is admissible. It will usually, but not always, admit evidence that is relevant to the proceedings. The tribunal is not normally concerned about how evidence is gathered – whether recordings were taken by the employer or by the employee.
Exclusion of evidence will commonly be on the application of one of the parties on the grounds that to do so is in the interests of public policy (particularly where the evidence has been obtained immorally) or where the evidence has been disclosed late in the proceedings.
Has Case Law Provided any Guidance?
The leading case is Chairman and Governors of Amwell View School v Dogherty in 2006.
Mrs Dogherty had been dismissed for misconduct. She secretly made a recording of the disciplinary and appeal hearings, including the deliberations of the panel of governors of the school, without their knowledge. The school objected to Mrs Dogherty seeking to use the recordings as evidence in support of her case for unfair dismissal.
The EAT rejected the argument that admitting the evidence was a breach of the right to privacy under Article 8 of the European Convention on Human Rights – the school and its work were already in the public domain. It admitted as evidence the recording of disciplinary and appeal hearings that Mrs Dogherty had made covertly, but it excluded the recordings of the private deliberations of the disciplinary panel on the grounds of “public policy”: the employee was not present for that part of the hearing.
The EAT did say that such deliberations might be admissible where the panel had given no reason for its decision and the covert recording showed that discrimination was involved.
What Should the Employer Do?
Employers are advised to consider the following:
- Review their disciplinary and grievance policies to make it clear that covert recordings in hearings and appeals are specifically forbidden without the consent of those present.
- As a procedural point, the chair of the hearing or appeal should request that all those present should ensure that mobile phones, or any other portable devices, are switched off, and that employees and their representatives should remove all their belongings from the hearing room during an adjournment.
- As it is at the tribunal’s discretion as to whether or not recorded conversations are admitted as evidence, employers should take care to ensure that all discussion at the hearing and relating to it is appropriate.
- Conversely, the employer could take a more positive approach and decide to record all the public elements of the proceedings. Typed transcripts of the recordings and copies of any minutes could then be provided to all parties. The recordings can be kept for future reference.
- Where cases are particularly sensitive, it might be a good idea for the panel to adjourn the hearing or appeal and consider the outcome away from the meeting room so that the possibility of any covert recording is minimised.
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