Covert recordings by UK employees of HR meetings have become widespread. This has been facilitated by advances in technology.
Most employees nowadays carry a mobile phone with a recording function, enabling discreet recordings. It is so much easier than concealing a cereal-box sized, clunking and whirring cassette recorder about one’s person.
Disciplinary, poor performance, grievance and dismissal meetings (and associated discussions) are the main targets for covert recordings by employees. Typically, a reason for recording the meeting will be to obtain an accurate record of what was said.
It is true that a recording may be more comprehensive and accurate and requires less effort and time in the making, than manuscript note taking. That does not, however, account for the need for secrecy.
More cynically, the employee may keep the recording under-cover in the hope that the employer will be caught out say something unhelpful or embarrassing, which the employee can then turn to his or her advantage. Most commonly, covert recordings emerge in the course of employment tribunal proceedings. Occasionally, they will be offered to the press - or this will be threatened by the employee.
Can an employee rely on covert recordings in employment tribunal proceedings?
Employment tribunal judges have discretion to admit covert recordings by employees in evidence.
Anecdotally, judges do seem to find these recordings irritating, as they are often produced at a late stage and can dramatically increase the volume of material to be considered. Verbatim transcripts of recordings tend to be considerably longer than a manuscript note of the same discussion.
Nevertheless, it is common for employees to be permitted to rely on covert recordings. Case law on this issue draws a distinction between the nature of the discussions that were recorded:
• A recording of a meeting at which the employee was and had permission to be present is likely to be admitted as evidence. This includes, for example, a disciplinary hearing or a redundancy consultation meeting.
• Where the recording is of the private deliberations of managers. However, the tribunal may decide not to admit the recording for reasons of public policy.
This rule of thumb may sometimes be overridden. For example, where the recording contains evidence of discrimination, or an explanation of a decision that has not been articulated elsewhere.
What to do if your employee produced a covert recording as part of a tribunal claim
Should an employee produce a covert recording, don’t necessarily cringe and assume it is a ‘bad’ thing. Go through it carefully - it may be more helpful than harmful to you as an employer and an own goal for the claimant.
Remember not to rely solely upon the transcript, but to compare it with the original recording itself, in case it has been edited to the employer’s detriment.
If, however, you want the recording to be excluded:
• Draw the attention of the claimant (and the tribunal if necessary) to the guidance set out in the case of Vaughan. This suggests that the claimant must make an application to the tribunal for the contents of the recording to be admitted in evidence. The application should be accompanied by a transcript of the recording with an explanation as to why it is relevant.
• Grounds for objecting to that application include public policy (if private deliberations were recorded) include lack 20 AUGUST 2015 of relevance to the claim and, where the recorded material is voluminous, disproportionality.
• If the recording came to light at a very late stage, consider whether you can realistically consider it in the time available. If an adjournment or postponement is genuinely necessary, consider a costs application against the claimant for costs incurred as a result of the late disclosure.
Practical tips for avoiding the dangers of covert recordings
There are steps employers can take to reduce the risks associated with covert recordings:
• Include an express prohibition on employee recordings of meetings in policies and staff handbooks. Perhaps reinforce this in letters requesting attendance at meetings and at the outset of the meeting itself. This will not assist in having a covert recording refused by a judge, but should serve as a helpful deterrent. It also allows the employer to take disciplinary action in respect of the recording itself.
• Ask the employee the direct question: “are you recording this meeting?” The employee may not answer truthfully, but in the event that the recording is later relied upon in a tribunal hearing, a lack of candour will undermine the general credibility of the employee as a witness.
• In particular, ask this direct question if any telltale signs of recordings are present. For example, a mobile phone (or a file or bag which could contain one) being placed on the desk with an unusually deliberate air.
• Make all those attending the meeting on behalf of the employer aware beforehand of the prevalence of covert recordings. People who are aware that they are being, or possibly might be, recorded, tend to take more care over what they say.
• Retire to another room for private deliberations and discussions. Often, at the end of a disciplinary hearing, the meeting is adjourned and reconvened shortly afterwards, with the employee and any companion required to leave the room in the interim. What is said in the interim is a common target of covert recordings. It is easily done, with the employee leaving a bag or jacket containing a mobile phone in the room. It is better to adjourn to another room.
• Before fighting fire with fire and recording these meetings on behalf of the employer, bear in mind that employers have additional legal obligations to consider, not least under data protection law.ncurred as a result of the late disclosure.
Overriding all of the above tips, of course, is to avoid saying something harmful in the first place. But that may be easier said than done!
By Anne-Marie Balfour, senior associate, Charles Russell Speechlys LLP
Covert recordings by UK employees of HR meetings have become widespread. This has been facilitated by advances in technology.
Most employees nowadays carry a mobile phone with a recording function, enabling discreet recordings. It is so much easier than concealing a cereal-box sized, clunking and whirring cassette recorder about one’s person.
Disciplinary, poor performance, grievance and dismissal meetings (and associated discussions) are the main targets for covert recordings by employees. Typically, a reason for recording the meeting will be to obtain an accurate record of what was said.
It is true that a recording may be more comprehensive and accurate and requires less effort and time in the making, than manuscript note taking. That does not, however, account for the need for secrecy.
More cynically, the employee may keep the recording under-cover in the hope that the employer will be caught out say something unhelpful or embarrassing, which the employee can then turn to his or her advantage. Most commonly, covert recordings emerge in the course of employment tribunal proceedings. Occasionally, they will be offered to the press - or this will be threatened by the employee.
Can an employee rely on covert recordings in employment tribunal proceedings?
Employment tribunal judges have discretion to admit covert recordings by employees in evidence.
Anecdotally, judges do seem to find these recordings irritating, as they are often produced at a late stage and can dramatically increase the volume of material to be considered. Verbatim transcripts of recordings tend to be considerably longer than a manuscript note of the same discussion.
Nevertheless, it is common for employees to be permitted to rely on covert recordings. Case law on this issue draws a distinction between the nature of the discussions that were recorded:
• A recording of a meeting at which the employee was and had permission to be present is likely to be admitted as evidence. This includes, for example, a disciplinary hearing or a redundancy consultation meeting.
• Where the recording is of the private deliberations of managers. However, the tribunal may decide not to admit the recording for reasons of public policy.
This rule of thumb may sometimes be overridden. For example, where the recording contains evidence of discrimination, or an explanation of a decision that has not been articulated elsewhere.
What to do if your employee produced a covert recording as part of a tribunal claim
Should an employee produce a covert recording, don’t necessarily cringe and assume it is a ‘bad’ thing. Go through it carefully - it may be more helpful than harmful to you as an employer and an own goal for the claimant.
Remember not to rely solely upon the transcript, but to compare it with the original recording itself, in case it has been edited to the employer’s detriment.
If, however, you want the recording to be excluded:
• Draw the attention of the claimant (and the tribunal if necessary) to the guidance set out in the case of Vaughan. This suggests that the claimant must make an application to the tribunal for the contents of the recording to be admitted in evidence. The application should be accompanied by a transcript of the recording with an explanation as to why it is relevant.
• Grounds for objecting to that application include public policy (if private deliberations were recorded) include lack 20 AUGUST 2015 of relevance to the claim and, where the recorded material is voluminous, disproportionality.
• If the recording came to light at a very late stage, consider whether you can realistically consider it in the time available. If an adjournment or postponement is genuinely necessary, consider a costs application against the claimant for costs incurred as a result of the late disclosure.
Practical tips for avoiding the dangers of covert recordings
There are steps employers can take to reduce the risks associated with covert recordings:
• Include an express prohibition on employee recordings of meetings in policies and staff handbooks. Perhaps reinforce this in letters requesting attendance at meetings and at the outset of the meeting itself. This will not assist in having a covert recording refused by a judge, but should serve as a helpful deterrent. It also allows the employer to take disciplinary action in respect of the recording itself.
• Ask the employee the direct question: “are you recording this meeting?” The employee may not answer truthfully, but in the event that the recording is later relied upon in a tribunal hearing, a lack of candour will undermine the general credibility of the employee as a witness.
• In particular, ask this direct question if any telltale signs of recordings are present. For example, a mobile phone (or a file or bag which could contain one) being placed on the desk with an unusually deliberate air.
• Make all those attending the meeting on behalf of the employer aware beforehand of the prevalence of covert recordings. People who are aware that they are being, or possibly might be, recorded, tend to take more care over what they say.
• Retire to another room for private deliberations and discussions. Often, at the end of a disciplinary hearing, the meeting is adjourned and reconvened shortly afterwards, with the employee and any companion required to leave the room in the interim. What is said in the interim is a common target of covert recordings. It is easily done, with the employee leaving a bag or jacket containing a mobile phone in the room. It is better to adjourn to another room.
• Before fighting fire with fire and recording these meetings on behalf of the employer, bear in mind that employers have additional legal obligations to consider, not least under data protection law.ncurred as a result of the late disclosure.
Overriding all of the above tips, of course, is to avoid saying something harmful in the first place. But that may be easier said than done!
By Anne-Marie Balfour, senior associate, Charles Russell Speechlys LLP
