Secret recordings

You can use secret recordings as evidence in the Employment Tribunal. Case law shows that Employment tribunals take a generous view on what evidence is admissible. The fact that a meeting is recorded in secret does not mean it cannot be used as evidence.

Exceptions are made for recordings of private conversations which might not be admissible for public policy reasons. However, these conversations may be admissible if they are evidence of discrimination.

The Employment Appeal Tribunal (EAT) recently considered the issue of covert recordings in Phoenix House Ltd v. Stockman. The EAT had to decide whether an employee’s covert recording breached the implied term of mutual trust and confidence.  The Judge said,

” There was a time when an employee – or for that matter an employer – had to go to a great deal of trouble to record a meeting covertly. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. But in our judgment times have changed. Most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on.
In our collective experience it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere“.

Is it misconduct?

The EAT said that secret recordings will normally amount to misconduct, but will not automatically be gross misconduct justifying dismissal.  The relevant factors are as follows:

1. The purpose of the meeting which has been recorded, which “may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation”.
2. The extent of the employee’s blameworthiness is also relevant, and this may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or
   distressed employee who has scarcely thought about the blameworthiness of making such a recording.
3. The circumstances of the recording are also relevant, for example an employee who wishes to conceal a disability which makes it difficult for them to accurately remember conversations.
4. Whether the employee has contravened an express instruction not to record or lied about doing so will also be relevant, as will the subject-matter of the recording. If highly confidential information or personal information relating to another employee is discussed, this is more likely to involve a breach than where the discussion relates to matters concerning the employee of which a note would normally be kept and shared.
5. Any evidence of the attitude of the employer to secret recordings will be relevant, particularly if the disciplinary policy says that employees should not make secret recordings.

Effectively, the Court will look at all the circumstances. In this case, the EAT said that Ms Stockman had not recorded the meeting with the intention of entrapment. She recorded a single meeting concerned with her own position rather than the confidential information of the business. The EAT suggested that it might be good practice for both employers and employees to say if there is any intention to record a meeting and that it will generally amount to misconduct if an employee does not declare their intention to the employer to do so. This will allow both sides to consider whether it is desirable to record a meeting, and if so, how. A better approach may be to prepare a meeting note or list of agreed outcomes at the end of the meeting.

In Punjab National Bank (International) Ltd and others v Gosain [2014], the EAT said that secretly recorded evidence of private discussions following a grievance hearing was admissible, because the recordings contained evidence which was sexual and discriminatory in its nature, and was 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 this area Amwell View School v Doherty 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.

Updated: 07/04/2020