Business aid: Covert recording of a meeting

Victoria Wright of local solicitors Dean Wilson LLP answers questions on Employment Law.

What happens if an employee covertly records a meeting?
First of all, you should make it clear under your disciplinary policy that covert recording of a meeting of any nature by the employee or by someone accompanying them is unacceptable, and can lead to disciplinary action being taken.

You may wish to make arrangements for the meeting to be recorded openly; however, this can lead to time-consuming transcription of the sound files or tapes of the meeting. Although a compromise could be to let the employee have a copy of the recording and make their own transcription if necessary.

Employment Tribunals have a wide discretion to decide whether evidence is admissible and generally relevant evidence will be. The courts have said that whilst the practice of covert recording may be distasteful, this does not necessarily render evidence obtained in that way inadmissible. 

In one case, the Employment Appeal Tribunal held that whilst a covert recording of a disciplinary hearing could be admitted on the grounds of public policy, a recording of the disciplinary panel’s private deliberations could not. In another case, the private part of the recording was allowed as the comments recorded were not part of the deliberations in relation to the matters being considered at the hearing. It was then for the tribunal panel hearing the case to assess that evidence, and the impact of it upon the issues it had to determine.

Depending on what is said during private conversations, the recording may be admissible at a hearing in future. It is obviously preferable to avoid having this sort of costly and time consuming argument at a tribunal or court hearing. 

There are steps which can be taken to minimise the risk of any recordings being made, one being to ask for mobile phones to be switched off and left in view on a table (although the problem with this is that there may be other secret recording devices, and the procedure may cause friction and delay).

The most sensible solution is to retire to a different private room for deliberations, or for any part of the process which you would not want to be recorded. Alternatively, do not say anything that would embarrass you if it were repeated later on at an Employment Tribunal.

Another option is to ask the employee and their companion to leave the room and to take all of their belongings with them. This should be a relatively safe course of action, assuming that there have been no James Bond-style recording gadgets left behind to capture what is said …

Victoria Wright qualified as a solicitor in 2000 and has focused on employment law ever since, advising both employers and employees. She specialises in reducing risk for clients, and providing straight-forward and cost effective advice.