Covert Recording in the Workplace

An issue causing increasing concern for HR practitioners is the practice of employees recording grievance and disciplinary meetings without the employer’s knowledge. Employment Law Specialist Julie Austin explores the impact of this covert recording in the workplace.While many employers prohibit such practices in their employee handbooks, it is almost impossible to prevent and detect any such recording and employers should be aware of the risk of employees making covert re...

An issue causing increasing concern for HR practitioners is the practice of employees recording grievance and disciplinary meetings without the employer’s knowledge. Employment Law Specialist Julie Austin explores the impact of this covert recording in the workplace.

While many employers prohibit such practices in their employee handbooks, it is almost impossible to prevent and detect any such recording and employers should be aware of the risk of employees making covert recordings as they may be admissible in an employment tribunal.

There is no general rule on the admissibility of covert recordings in tribunal proceedings in Ireland and it is a matter for a tribunal to decide on a case by case basis whether the recording can be relied upon. If the evidence is relevant and proportionate it may well be admitted by a tribunal.

The case law in the UK is somewhat more advanced and is likely to be of persuasive authority in this jurisdiction. In the leading case on the admissibility of covert recordings in tribunal proceedings - Chairman and Governors of Amwell View School v Dogherty (UKEAT/0243/06) - the UK Employment Appeals Tribunal (EAT) concluded that, while covert recordings were generally admissible, a recording of the private deliberations of the panel was inadmissible on the grounds of public policy. However, the EAT commented that recordings of such deliberations might be admissible in some circumstances and gave an example of a case where the panel had given no reason for its decision and the covert recording indicated that the decision had involved discrimination.

In another UK case - Punjab National Bank v Gosain UK EAT/0003/14 - an employee attended a number of grievance and disciplinary meetings which he recorded without the employer’s consent. The meetings were adjourned on a number of occasions but the employee continued to record the private conversations of the management team involved. The recording of the grievance hearing contained an instruction from the Bank's managing director to dismiss the employee and the manager hearing the grievance stating that he was deliberately skipping the key issues raised by the employee in her grievance letter. The recording of the disciplinary hearing suggested a sexual comment had been made about the employee during the adjournment. The EAT ruled that the recordings were admissible on the grounds that the comments made did not constitute part of the deliberations of the panel.

To reduce the risk of a tribunal admitting a secret recording into evidence, employers should take the following steps:

1. If there is a break in a meeting, the investigation / disciplinary team should leave the room instead of the employee being asked to leave.

2. Prohibit the practice of recording internal meetings in the staff handbook. It would be prudent to make a note that this has been explained to the employee at the start of any hearing and it should be noted that the employee confirms they understand and declare that they are not making any recording. If an employee records a meeting despite this warning, the employee’s credibility may be undermined at the hearing of any case.

3. Take detailed notes of grievance and disciplinary meetings and provide these to the employee following the meeting. A tribunal may be less likely to admit a recording into evidence if the employee has failed to take issue with the notes at the time of their creation.

Finally, by way of a word of warning, while the tribunals will generally allow an employee to submit a covert recording into evidence where it is of probative value, the same latitude will not necessarily be afforded to an employer and employers will generally be held to a higher standard. In the UK case of Scott Kilday v MGM International (2014), a company was ordered to pay a former employee £16,000 in compensation for constructive dismissal in circumstances where it placed a bug in an employee’s potted plant. Employers should remember that any recording of their employees must be fair, transparent and carried out for the legitimate interests of the employer.  We will be looking at this aspect of covert recording in the workplace in our next issue.