Covert recordings – are they admissible and what should you do?

The notion of an employee recording a hearing they are attending, or indeed other meetings, is something many HR professionals and managers get very concerned about. Sometimes an HR practitioner will find out that a hearing has been covertly recorded and will seek reassurance that the recording won’t be admissible if the case ends up before an Employment Tribunal.

The bad news is that case law shows us that a covert recording is certainly likely to be admissible, if it is relevant to the proceedings. The relevant case involved an individual who covertly recorded not only the hearings themselves, but also private discussions between panel members while the claimant was out of the room. These were found to be admissible and formed part of the evidence considered by the tribunal.

But actually, what’s the real problem here? Why are managers and HR professionals concerned about recordings? Many employers now use recordings for hearings to avoid the problem of having to take minutes, and these being disputed or inaccurate. A recording of the meeting can be transcribed and should be a completely accurate reflection of discussions that have taken place.

Yes of course an accurate transcription of what was said in a hearing means that the employer can’t hide from anything a manager has said that is ‘wrong’. But if something has been said that shouldn’t have been, the issue isn’t whether the fact has been recorded, the issue is it happened in the first place. An argument over whether it was said or not is unlikely to cover the employer in glory anyway. And in any case it works both ways – an accurate, proven reflection of what the employee said might be extremely useful for an employer as well, at a later date.

In the relevant case mentioned above, which highlights the admissibility of covert recordings, the real problem was the recording of conversations that took place when the hearing was adjourned, without the employee in the room. That can be avoided without banning recordings altogether, with simple precautions.

If you’re still keen that employees should not be allowed to record hearings or meetings, what can you do about it? You could make it a disciplinary offence, and could highlight in disciplinary invitation letters that recording is not permitted. You could then reiterate at the beginning of the hearing itself that recording is not permitted and could ask the employee to confirm that they are not doing so.

But why not take a more pragmatic approach?

  • Be realistic and accept that disgruntled employees may record a meeting whether there is a policy in place or not. Unless you’re going to body search everyone (hint: don’t), it’s always going to be a risk, and sanctioning someone after the event won’t actually help at all.
  • Avoid the risk of recordings of private discussions by ensuring these either take place in another room, or that the employee’s possessions are removed when they themselves leave the hearing room.
  • Advise managers on conducting hearings appropriately so that it doesn’t matter if it is recorded anyway – if there’s nothing to hide, it won’t be an issue.
  • Why not record it yourself anyway? It makes producing notes of a meeting easier, avoids debates about the accuracy of those notes, and the fact a meeting is being recorded can be reassuring for a defensive employee, as well as perhaps moderating their own behaviour where there is a potential of disruption or anger.

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