Can employees record disciplinary meetings, and would a recording be admissible in a tribunal?
We assist and act for numerous employees and employers in relation to dealing with grievance and disciplinary matters. A question we get asked is employees allowed to record grievance and disciplinary meetings?
It is common that employers when conducting disciplinary hearings will have an individual present to note take, but it is common for queries to arise as to how accurate the notes are. Therefore it is now common for employees to use their smartphones to record the meeting, to support them as they are not able to note take as they are answering questions or, because there is a lack of trust and also so that they have their own record of the meeting.
It is common that employees are keen to produce recordings where employers say something which is unhelpful to their case. It could be the case that employers could be undermined by what they have said in the meeting and the most frequent question asked is whether the employee’s covert recording would be allowed before a Tribunal.
The General Principle
In English law the general rule is that covert recordings would be allowed as evidence in the Employment Tribunal, as long as the material from the recording is relevant to the issues raised in your ET1. It is likely that a transcript of the recording could be used.
It should be expected that the tribunal will criticise you for making a covert recording as they do not welcome this practice. However, if the recording reveals that the employer or their representative makes comments or behaves in a way which could jepordised their case then that consideration may reduce its significance for the employee. Employees should be made aware that the Tribunal will investigate into how the recording was obtained.
In a recent case, this tactic can backfire (Chairman & Governors of Amwell View School v Dogherty reaffirmed in Vaughan v London Borough of Lewisham), the claimant who made a covert recording at her disciplinary meeting lost her case. The employer raised the point that the claimants conduct by making the covert recording proved the way that the claimant destroyed confidence and trust between itself and her. The claimant had also tarnished her credibility due to the face that the claimant had been asked if she was recording and she denied this. Even though the claimant was allowed to present the recording to the tribunal but it did her case no favours.
What should employees do?
It is always better to have a recording and not use it, than to have nothing that you could possibly rely on. It is recommended to be honest if you are asked if you are recording.
What should employers do?
It should be made clear that firstly employers should ask before any grievance or disciplinary meeting if the employee concerned is recording the meeting. This forces the employee to either come clean or possibly allow them to lie which will support the employer later on as it will affect the claimant’s credibility as a witness.
Secondly, it may be an idea to include in all employees Contract of Employment that making covert recordings of grievance or disciplinary meetings are forbidden. This means that if an employee continued to record the meeting they would be in breach of the term in their contract, and the employer could present the argument that a subsequent dismissal was in breach of contract.