Ask the expert: Covert recording of a disciplinary hearing

Q – We have been having conduct issues with one of our receptionists and have set up a disciplinary hearing to address this. We have heard rumours from some of our other receptionists that this employee intends to covertly record the hearing so she can use it against us. The partners are wondering if we can speak to her about this. Are we able to covertly record the hearing ourselves?

A – This is not an uncommon problem for employers. Usually the fact that an employee has covertly recorded a meeting will only come to light when the matter is raised at a tribunal or as part of settlement negotiations.

The use of covert recordings as evidence at a tribunal has been established for a while and usually an employee will be permitted to do so. A tribunal is not likely to listen to the whole recording but an employee can be asked to narrow down the recording to specific parts they wish to address. Private deliberations will not normally be admissible unless the employee is arguing discrimination issues.

Another aspect a tribunal will consider is why the employee made the recording in the first place. Was the purpose to entrap the employer and try to use the recording against them? Or was it simply for the employee to have an accurate reflection of what was discussed?

This point arose in a recent case where the employer argued that the employee’s decision to covertly record the meeting amounted to an act of misconduct and should be taken into consideration when awarding compensation. Surprisingly, this aspect has not been raised at tribunal as part of a case before.

In Phoenix House v Stockman, the employee became aggrieved following a restructure that had a negative impact upon her role. She complained to her manager how she had been treated and she was supported by a colleague. The manager held a meeting with the colleague, which Ms Stockman interrupted, demanding to know what was being discussed and refusing to leave. Following this incident, she was invited to a meeting with HR and was advised that disciplinary proceedings would be launched. However, a number of events following this meeting led to the employee being dismissed due to the breakdown in her relationship with the senior management team.

Both the tribunal and the EAT found the dismissal to be unfair.

At the hearing, it emerged that the employee had covertly recorded her meeting with HR, so her compensation was reduced by 10 per cent. The employer argued that if they had known she had covertly recorded the meeting, then she would have been dismissed for gross misconduct, and therefore her compensation should be reduced to nil.

The tribunal and EAT looked at the reason why the employee had recorded the meeting. The EAT advised that covert recording would normally amount to misconduct but it would only likely be gross misconduct depending on the purpose of the recording and the extent to which the employer had notified the employee in advanced that such an act would be classed as gross misconduct. The EAT felt that, in this case, the employee had recorded the meeting simply to keep a record of it.

This case highlights some points practices should consider going forward:

1. Look at current policies and consider including the fact that covertly recording meetings will be considered an act of misconduct, or even gross misconduct 2. In the invite to disciplinary letter, clearly state that recording of the meeting will not be allowed 3. Reaffirm at the start of the meeting that recording should not take place and what the outcome maybe if this is found 4. If the employee asks for the meeting to be recorded, check the reason why. You may need to consider this if the employee has memory issues, has no one to accompany them or has a disability and recording the meeting will be a reasonable adjustment.

In terms of the practice covertly recording any meetings, this is not advised and is likely to breach GDPR guidelines. It may also breach the employee’s right to private and family life, unless the employer can show and justify that recording was a proportionate way of achieving a legitimate aim. The other consequences of the employer covertly recording meetings could be a negative impact on the workplace and staff morale.

The practice can advise the employee that the meeting is being recorded if they wish to do so and benefits of this include limiting any dispute over the accuracy of the minutes. It also keeps the control of the recording in the employer’s hands, which in turn allows the employer to ensure the recording is not shared on social media. They can advise the employee that any unauthorised use will be considered as gross misconduct and it can help the employer show that they have nothing to hide.

The downside of recording is that it can place additional pressure on those leading the meeting, perhaps increasing the chance of mistakes. The cost and time required to type up the transcript of the recording would increase, while traditional minute-taking tends to be more concise and focused.

This can be a tricky matter and if you require any advice then contact our employment law advisers for more detailed advice.