In recent years the number of employees seeking to rely on covert recordings when bringing claims in the employment tribunal has increased substantially. Now that smartphones are commonplace and private conversations can be recorded at the touch of a button, employers are naturally concerned that every day remarks could be taken out of context and used to support otherwise weak claims. But what are the rules surrounding these type of recordings?
We are often asked whether recordings made without the knowledge of all present are admissible in tribunal proceedings. As is often the case, the answer is that this depends on the circumstances of the case. The fact the information has been obtained clandestinely does not mean that it cannot be heard at all, and this point has been definitively clarified by the higher courts. When making a decision as to whether to allow recorded evidence, the tribunal will weigh up a number of factors including the relevance of the recording to the subject of the claim and the importance of preserving private deliberations.
A well known case found that an employee who made secret recordings of the deliberations of the disciplinary panel who took the decision to dismiss her (when she was not present) was not permitted to present this evidence to the tribunal. However it can be difficult to draw a hard and fast rule from the case law on this topic. A more recent case concluded that recorded evidence from both the private and public discussions surrounding an employee’s grievance could be admitted, and the difference between the facts of these two cases is hard to make out at first glance. The courts have stressed that decisions of this nature are likely to be highly fact specific.
Separately, employees who are not bringing tribunal claims but have chosen to secretly record their colleagues or line managers may be acting in breach of the relationship and trust of confidence that must exist between an employee and employer. While there are limited circumstances in which this behaviour is justified, it will be very much the exception rather than the rule. An employee with a habit of making recordings is therefore running the risk of (justified) disciplinary action.