Covert recordings – what is the worst that could happen?
It’s no secret that employers and employment lawyers alike are normally extremely wary of employees recording meetings. Indeed, we often advise employers to get employees to confirm that they are not recording disciplinary, grievance or other ‘high stakes’ meetings right at the start of such a meeting. Fundamentally, however, unless you are going to start requiring employees to empty their pockets and frisk them for wires, you are not going to be able to stop an employee from covertly recording a meeting if they really want to do so.
The reason employers (and their lawyers) do not like covert recordings
Not many people like the pressure of being recorded, particularly when that recording might come back to haunt them. That is the main (real) reason that employers (and their lawyers) don’t like covert recordings. It impairs deniability. Employers and their lawyers often prefer to rely on minutes, where anything that might suggest any failures on the part of the employer can conveniently be left out or covered off with some creative summarising (thoughtless comments, forgetting to remind an employee of their right to be accompanied, etc.). Minutes do not normally take account of tone of voice, either. This can be important if an employee alleges that something was said aggressively or sarcastically. This kind of allegation is quite difficult to prove, since tone of voice is often open to interpretation. Nonetheless, a recording will allow a tribunal to assess tone for themselves…
Admissibility of covert recordings made by employees during tribunal proceedings
Despite the tribunals having stated that “the practice of covert recordings is distasteful”, this does not necessarily render evidence obtained in that way inadmissible. The general rule established by case law is that the covert recording of a meeting where all parties are present may be admissible if relevance can be shown. The recording will be a more accurate record than any minutes, and it is sometimes the only way of getting to the bottom of what really happened or what was really said. This can come as a nasty shock to an employer who was hoping to be able to rely on their own version of events at tribunal.
Covert recordings will not always be admissible. For example, recordings that are made of other people by leaving a recording device on in a room where a private conversation is taking place would not normally be admissible. The key case on this concerned a covert recording of a panel chairing a disciplinary hearing, who had asked the employee for some time to deliberate in private. In this case, the EAT decided that the recordings of the panel’s private deliberations were not admissible for public policy reasons. However, there are exceptions to this. In the case of Punjab National Bank (International) Ltd and others v Gosain, the employee’s recordings of private conversations during disciplinary and grievance hearings were admissible because the relevant comments captured on the recordings were not part of the deliberations of the panel. They were recorded during breaks in the hearings and included the bank’s managing director giving an instruction to dismiss Ms Gosain, and the manager hearing the grievance saying that he was deliberately skipping the key issues raised by Ms Gosain in her grievance letter.
Managing recordings of meetings
So how do you deal with the risk of an employee covertly recording a meeting? These are our key recommendations:
Make your own recording
If you have any concerns that an employee might covertly record a meeting, make your own recording of the meeting. This avoids the need for minutes. If minutes of a meeting are contested by the employee, they lose their value in any event. The main reason for taking minutes in the first place is to protect the employer from a he-said, she-said scenario – but unless you have an accurate, incontestable record of the meeting, it is not always possible to prevent this.
Permit recording – assign copyright
Let the employee record the meeting openly. If you do this, we recommend that you ensure that the employee signs a simple document assigning the copyright of the recording to the employer. This will ensure that you retain control over the recording, and will prevent the employee from using the recording to damage the employer’s reputation (for example, by putting it on social media).
Use recording to your advantage
As much as an employer might feel pressured by the red flashing light of a recording device on the table in front of them, an employee might not want to be recorded either. If the employee refuses to participate in the meeting if it is being recorded, this is a refusal to co-operate with your reasonable instructions and can be dealt with as a conduct issue. If all parties are aware that they are being recorded, one might also hope that all parties will be on their best behaviour, which leads on to our final recommendation…
Keep it professional
Keep in mind that, given how easy it is for employees to record meetings covertly and the likelihood of recordings being admissible in tribunal proceedings, care should be taken that all discussions relating to employees, particularly those relating to disciplinary and grievance processes, are always appropriate and professional.
Without prejudice/protected conversations
If either you or the employee want to engage in without prejudice discussions or a protected conversation during a meeting which is being recorded by either party, the recording can and ideally should stop (in the same way that you wouldn’t include minutes of a without prejudice or protected conversation). A recording of such a conversation (if made covertly) would not normally be admissible in tribunal proceedings in any event.