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Beware the covert recorder

It is now becoming common practice for employees to turn their iPhones and other mobile devices into recording equipment when meeting with their…

It is now becoming common practice for employees to turn their iPhones and other mobile devices into recording equipment when meeting with their employer or during grievance/disciplinary hearings. Indeed, you can now download audio recording apps for free!

The law

There is no absolute legal prohibition on recording a private conversation between two individuals. Issues arise when that recording is to be used in a public or third party environment where permission was not sought or granted. Provided that the recording is relevant to proving a disputed fact, the legal position is one of balancing one party's right to privacy against ensuring natural justice is carried out.

The Employment Appeal Tribunal has already confirmed that whilst the practice of covert recording is 'very distasteful', such recordings are not inadmissible merely because they have been obtained in a discreditable way (Chairman & Governors of Amwell View School v Dogherty reaffirmed in Vaughan v London Borough of Lewisham). The factors that a Tribunal will take into account when deciding whether or not to admit such evidence are:

Is the evidence recorded relevant to the issues between the employee and employer?

A fundamental principle in the rule of evidence is that it should only be admissible if it is relevant to the issue to be determined.

Would there be any procedural unfairness in allowing the recorded evidence to be admitted?

This is mainly in relation to ensuring the parties are on an equal footing. For example, disclosure of the recordings should not be so late in the day that the employer has no opportunity to prepare its defence.

Is there any contravention of the Human Rights Act 1998 / European Convention on Human Rights? For example, the right to respect for private and family life?

This may be relevant where there is video evidence or where third parties are discussed during the recording (for example patients, vulnerable adults or children).

Should the evidence be excluded on the grounds of public policy?

There are many different 'public interest immunity' situations that could apply. For example, the long established 'without prejudice' rule, in place to encourage parties to negotiate frankly to achieve settlement of disputes, can be used to exclude relevant evidence from proceedings. “Judicial immunity” or judicial privilege” might apply where the proceedings being conducted are of a 'judicial or quasi-judicial' nature.

Private deliberations

In practice, this means that employers must assume that all meetings with employees present might be recorded, and moderate their behaviour accordingly. But, what is the position when an employee records both the 'open' and 'closed' elements of a meeting or hearing? Whilst it may be difficult to challenge an employee's use of a recorded conversation where this is an 'open' conversation i.e. where the employee is present; surely when a disciplinary or grievance panel are discussing their “verdict” or decision there is an expectation of privacy? There is established case law to confirm that the recording of private deliberations and 'closed' hearings should not be part of evidence. The EAT held in the case of Chairman & Governors of Amwell View School v Doghertythere was an important public interest that certain ground rules should be complied with in disciplinary and appeal proceedings. "No ground rule could be more essential to ensuring a full and frank exchange of views…than the understanding that their deliberations would be conducted in private and remain private."

 

Recent case-law

However, the recent EAT decision in Punjab National Bank (International) Ltd v Mrs Gosainhas brought this issue into the limelight once again and reached a different conclusion. Mrs Gosain brought a claim for sexual harassment, sex discrimination and constructive unfair dismissal. She had attended a grievance hearing on 7 November 2012 and a disciplinary hearing on 15-16 January 2013 prior to submitting her resignation. She recorded both the 'public' and 'private' conversations connected with those hearings. The recordings were disclosed to the employer during the course of her Tribunal litigation. The question of whether she should be allowed to use the covert recordings of the 'private' conversations as evidence during the main Tribunal hearing became a preliminary issue for the EAT to determine.

Mrs Gosain alleged that during a break in the grievance hearing, the Managing Director had given an instruction to dismiss the Claimant and that the manager hearing the grievance said he was deliberately skipping the key issues raised in the grievance letter, namely that she was not being allowed a proper lunch break and issues around her pregnancy. It was further alleged that the manager hearing the disciplinary matter was recorded, during the break, as having made a comment in Punjabi about her with offensive sexual references.

These were clearly very serious allegations and the EAT distinguished the Amwellcase from Mrs Gosain's. They concluded that the alleged comments made during the private conversations were such that they fell outside the area of legitimate consideration of matters within the grievance and disciplinary panels' remit. They therefore allowed the evidence to be admissible before the full Tribunal hearing in Mrs Gosain's case.

In summary

So, where does this leave us?

The cases suggest that covert recordings can be used as evidence in Employment Tribunal proceedings, provided that:

  • It is relevant to the issues to be determined by the Tribunal;
  • There is no requirement to exclude the relevant evidence on the basis of public policy; and
  • It does not contravene the Human Rights Act (balancing the right to respect private and family life versus the right to a fair hearing).

Action for employers

So, given that there is a risk that recordings may be made and the evidence then presented to an Employment Tribunal, what can you do to protect your business? Here are a few practical tips for you to consider:

  • Ask employees to switch off their phones (not just put them on silent) during any formal meetings. Ask the employee to confirm that both they and their representative or companion have done this.
  • If you have any suspicion you are being recorded, ask the individual. Assure them that minutes will be made available to them to approve so there is no need to continue recording.
  • Make sure that employees take all of their belongings with them when they leave the room, so that you can deliberate or make your decision in private.
  • However, also check your office or room after the employee has left to ensure a recording device has not been left behind.
  • If conducting private discussions or deliberating on a grievance or disciplinary hearing, it is best for you/your panel to move to another room to ensure privacy.
  • Finally, do not make any personal or inappropriate comments about the employee, their representative or their circumstances of the case in question - not even as a joke. It is only in this way that employers can ensure that they will not be “caught out” by covert recordings, however inappropriate or unfair that may seem.

A version of this article was first published in Primary Care Today (Summer Edition 2014).