Wake-up call: Can employees use secret recordings at a tribunal?

Covertly recording a private conversation may be unethical, but an employment tribunal can still accept it as evidence, says Ashley Irving

The problem
One of our employees has been sacked for misconduct. He has now told me he recorded a private conversation during the hearing on his phone without asking permission. He says he will use it to bring a tribunal claim for compensation. Surely covert recordings are illegal?

The law
Conversations recorded without a person's knowledge could breach their right to privacy, but there is no absolute legal prohibition.

So what happens if an employee records both the 'open' and 'closed' parts of a grievance meeting or disciplinary hearing? It would be difficult to stop the recordings of open conversations - ones where the employee is present - being used as evidence. You would not stop them from taking written notes in a meeting, so why should other forms of recording be treated differently?

But what about recording a private conversation or conversations during a 'closed' hearing - where that employee was not present?

The Employment Appeal Tribunal says there is an important public interest in complying with certain rules in disciplinary and appeal proceedings. In the case of Dogherty v Chairman and Governors of Amwell View School 2006, it asserted: "No ground rule could be more essential to ensuring a full and frank exchange of views… (in their attempt to reach the 'right' decision) than the understanding that their deliberations would be conducted in private and remain private."

However, the Employment Appeal Tribunal also confirmed (in Vaughan v London Borough of Lewisham 2013) that while the practice of covert recording was "very distasteful", such recordings were not inadmissible merely because they had been obtained in that way.

A recent Employment Appeal Tribunal decision in Punjab National Bank (International) Ltd v Mrs Gosain 2014, which concerned a claim of sex discrimination and constructive unfair dismissal, looked at this question again.

Gosain recorded private conversations that took place during breaks in her grievance meeting, allegedly capturing the managing director instructing a manager to dismiss her, and the manager saying he was deliberately skipping over the key issues she had raised.

During a break in the disciplinary hearing, she allegedly recorded a manager saying in Punjabi that another employee had "ripped apart Mrs Gosain's vagina".
As the recordings formed part of the allegations in her case, she was allowed to use them as evidence.

Checklist

• Ask employees to ensure their phones are switched off (not just on silent) in meetings.
• If you have any suspicion you are being recorded, ask the individual directly. Assure them that a written summary of the meeting will be made available to them to approve so there is no need to continue recording.
• Check the room after the employee has left to ensure no device has been left behind.
• If conducting private discussions or deliberating on a grievance or disciplinary hearing, it is best for you/your panel to move to another room to ensure privacy.
• Make no personal comments about employees or their circumstances, even as a joke.

Beware
An employer could end up paying compensation of up to £30,000 for discrimination claims or the equivalent of one year's salary for dismissal claims - or even a combination of the two.

Contact
Ashley Irving is a solicitor at national law firm Weightmans (ashley.irving@weightmans.com)