Covert Recordings in the Workplace

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05 Apr 2017

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It is becoming increasingly common for employees to record conversations covertly, and for employers to object to this. Employers and employees have ready access to mobile recording devices, and employers should always be mindful of the possibility of some staff members potentially recording conversations at work without consent. This raises various questions, such as how can an employee record a conversation at work legally? During employment, covert behaviour may have an impact on employee relations and result in unrest between staff members.  However, if an employer suspects that recordings are being made and the employee lies and denies making these recordings, this could be held against the employee and may undermine their credibility in any subsequent disciplinary proceedings.  In extreme circumstances, an employer may also use this behaviour to show that there has been a breach of trust and confidence within the employment relationship. In employment proceedings, while covert recordings may have an impact on a tribunal’s view of a claimant, this does not make the recordings inadmissible as a rule.  In the case of Punjab National Bank (International) Ltd and others v Gosain [2014], covertly recorded evidence of private deliberations following a grievance hearing was admissible, on the basis that the recordings contained evidence which was sexual and discriminatory in its nature, and was therefore considered relevant to the claim. This prevailed over the confidentiality of these private deliberations. In addition, even where the evidence gathered may be seen as ‘discreditable’ or ‘distasteful’ it is unlikely that it will be prevented from admission in tribunal proceedings.  In the slightly earlier case of Vaughan v London Borough of Lewisham and Others [2013] the EAT indicated that, had an application to include covert recordings as evidence been made in a more focused manner, with properly supporting transcripts of the material together with an explanation as to why there were relevant; then the Claimant “may get a different result”. In this case, the Claimant’s application to adduce recordings of covertly recorded conversations between herself and managers was refused, on the basis that the information sought to be relied upon consisted of 39 hours of recordings, and the Judge did not consider it possible to form a view on the relevance (and therefore admissibility) of the recordings in the specific circumstances, given their high volume. Both of these cases follow the leading case in this area The Chairman and Governors of Amwell View School v Dogherty [2007], where transcripts of a secret taping of the employee’s disciplinary hearing taken by the employee were allowed as evidence, on the basis that it was always intended that there would be a written record of them in the form of minutes.  It was also held that ‘private deliberations’ of the disciplinary panel should be excluded as evidence – unless, for example, in a discrimination case where they contained evidence of such discrimination. Amanda Beattie, Croner Litigation Expert, advises that in the light of the above cases, employers should consider whether there is good reason to allow the tape recording of formal meetings (such as disciplinary or grievance hearings); especially if there is a high risk that they will be covertly recorded in any event, providing that all parties agree. “This also allows the employer to remain in control of the situation,” Amanda says. “However in doing so, the client should bear in mind that transcribing a tape can be time consuming and expensive, compared to the alternative – a note taker, and that they will be setting a precedent for the future. “In addition, and as always, if covert recording is increasingly becoming an issue during employment, employers may consider the introduction of a policy to cover the issue of covert recordings and confirming that breach may be considered a disciplinary offence in certain circumstances.  Such a policy in respect of tape recording in the workplace should determine what recording (if any) is permitted, and the fact that Company equipment should always be used for this purpose. “Any suitable policy should also set out the potential consequences of any breach, and the likelihood of disciplinary action; up to and including dismissal. In order to adequately rely on your policy for disciplinary purposes, it is imperative to clearly state that inappropriate recording includes that which is covert in its nature, or where the permission of those parties recorded is not sought prior to the recording.”

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