According to the Global System for Mobile Communications Association (or GSMA), it is globally estimated that more than 5 billion people own mobile devices and half of these are smartphones. In the United Kingdom, in 2018 76% of adults reported owning a smartphone, whilst 19% reported having a non-smart phone. Only 5% reported having no mobile phone at all.
It is clear that the majority of the workforce now own a smartphone with the ability to covertly record any discussion. It is “the work of a moment” to start recording a conversation on a mobile phone and in practice, it is not uncommon to find that an employee has recorded a meeting without saying so.
What does the Law say?
You schedule a disciplinary hearing with an employee due to allegations of misconduct. Unbeknownst to you, this employee decides to covertly record the disciplinary hearing. You may have adjourned the meeting to deliberate and send the employee out of the room. Your employee has left their phone under some papers, set to record and your comments as to how you wish would to dismiss them by whatever means possible are now in the employee’s domain – how does the law treat this scenario?
Generally speaking, the rule is that the recording of a disciplinary hearing or any meeting, whether covertly or otherwise, may be admissible as evidence in an Employment Tribunal, provided relevance can be shown. However, the private deliberations of the disciplinary panel would not be admissible
The leading case on the topic of ‘covert recordings’ is the case of Chairman and Governors of Amwell View School v Dogherty, in which the Employment Appeal Tribunal held that the employee’s recording of her own disciplinary hearing could be used as evidence before the tribunal in proceedings, but excluded the private deliberations of the disciplinary panel.
However, in contrast, in Fleming v East of England Ambulance Service NHS Trust, an employee was entitled to rely on evidence of a covertly recorded discussion between panel members during his adjourned disciplinary hearing for his claim of unfair dismissal and disability discrimination. In this case, the employee had listened to the recording before his disciplinary hearing was reconvened and made his views as to what he had heard known, before the panel decided to dismiss him. Due to the circumstances, the Employment Appeal Tribunal could not properly assess the decision to dismiss the Claimant without reference to the actual content of the discussions.
How is relevance determined?
Relevance is key to the admissibility of a covert recording in Employment Tribunals and in order to determine relevance, the Employment Tribunal will need to consider all of the factual circumstances, including: –
- Does the recording breach the implied term of trust and confidence?
- What is the purpose of the recording? Is it to protect a vulnerable employee from misrepresentation or is the employee highly manipulative and seeking to entrap the employer?
- Is the employee blameworthy in making the recording? Was it made clear to the employee that they were not permitted to record the meeting? Has the employee deliberately lied and recorded the meeting anyway?
- What was recorded is also relevant. Is the meeting highly confidential or a meeting that would have normally be recorded in any event?
- What is the attitude of the employer? For example, does ‘covert recording’ amount to gross misconduct in the employer’s disciplinary procedure?
Our Advice – what should employers be aware of?
A well-advised employer should:
- Explore all of the circumstances before jumping to any conclusions as to why an employee may have recorded a meeting.
- Have a clear policy in place that addresses the issue of covert recordings, making clear that this in itself may be deemed a breach of trust and confidence and therefore, disciplinary action may ensue.
- Make clear at the start of the meeting that any recording, without consent, is not permitted.
- If minded to do so, agree with the employee that if they wish to record the meeting, they are permitted provided a copy is given to the employer afterwards.
Employment Tribunals are reluctant to penalise Employers that behave reasonably in all of the circumstances, as such, keep this in mind before deciding on any action, as there are considerable risks that high levels of compensation could be awarded. For information on the costs of discrimination claims, read our article here.
Please note, the advice in this article is general and should be treated as such. Our expert Employment Law Consultants should be contacted for specialist advice that is tailored and specific to your circumstances.
If you have any concerns or would like advice on this topic or any employment law matter, please call in our 24-hour client advice line: 0330 100 8704 and quote your Client Account Number on all correspondence and telephone calls.