What can you do if one of your employees tape records a meeting or disciplinary without asking or te...

1. Audio Recordings
What can you do if one of your employees tape records a meeting or disciplinary without asking or
telling you first?
With the increased amount of technological options for easy audio recording, employers are often
being asked if an employee can record meetings or hearings. In other cases, employees may choose
to record the meeting without asking first, creating a recording which the employer only finds out
about much later, such as when the employee brings an employment tribunal claim.
The general rule which the Tribunals will apply when considering whether to allow a claimant to rely
on their covert recordings of meetings is whether or not the recordings are relevant to the case. If
they are then they will usually be allowed in as part of the proceedings as long as the claimant
complies with the usual disclosure duties (i.e. they provide the respondent with a copy in advance of
the hearing).
It will not matter whether or not the employee had the permission of all or any of those present to
make the recording or whether such recordings were not permitted by the employer's policies or the
employee was told that they were not allowed to make such a recording and did so anyway.
Recent cases
1) Punjab National Bank v Gosain
Prior to the claimant's resignation and subsequent claims for sexual harassment, sex discrimination
and constructive unfair dismissal, she attended a grievance and a disciplinary hearing and without
the respondent's knowledge, she recorded the entirety of the meetings, including the private
deliberations of the respondent.
The claimant alleged that the recordings of the private
deliberations provided evidence in support of her
discrimination claims in that they recorded that the
managing director of the respondent had given an
instruction that she should be dismissed, that the
grievance officer said he was skipping the key issues
raised in the claimant's grievance concerning being
allowed to take breaks and her pregnancy and that
during the disciplinary hearing break a comment was
made in Punjabi concerning the claimant's anatomy
which was derogatory.
The view taken was that although these comments were made during the respondent's private
deliberation time, they were not part of the deliberations in relation to the matters under
consideration and therefore they were admissible. This view was supported by the Employment
Appeal Tribunal (EAT).
2) Amwell View School Governors v Dogherty

2. The claimant had secretly recorded her appeal hearing. The recording covered the "open" parts of
the proceedings where the claimant was present and also, the private deliberations of the
respondent during breaks in those procedures.
The EAT agreed that the recordings of the "open" parts of the hearing were relevant to the case
given that the claimant's unfair dismissal claim alleged that the appeal panel had behaved
improperly in its approach to the appeal. They also acknowledged that the respondent had made its
own note and would not have objected had the claimant asked or proceeded to make her own note of
the meeting.
However, the EAT found in this case that a superior public policy concern arose in respect of the
recordings of the private deliberations and that this was "essential to ensuring a full and frank
exchange of views between members of the adjudicating body (in their attempt to reach the "right"
decision)".
In giving their decision, the EAT did say that their view might have been different if an inadvertent
recording of private deliberations had produced incontrovertible evidence of discrimination in a
discrimination claim.
3) Williamson v Chief Constable of Greater Manchester Police
The claimant failed to successfully complete his probationary period as a police constable and was
not considered suitable to progress to full police constable. By way of reasonable adjustment for his
disability (depression), the claimant sought a civilian role with the respondent instead.
The claimant audio recorded a formal capability meeting on his mobile phone including discussions
which occurred when the claimant and his representative were out of the room.
The EAT had to decide whether the Employment Tribunal Judge had been correct to exclude the
recordings from the evidence in the case. They decided he was and excluded the entire recording
and resulting transcripts on the basis that they were not relevant to the issues in the case.
Tips for employers
1) Have a policy which says that hearing cannot be
recorded and remind employees of this at the outset
of every hearing. This might not help you get the
evidence excluded if it is relevant but it will damage
the employee's credibility.
2) Keep an eye out for behaviour which would suggest
that the employee is recording the meeting (such as a phone on the table) and ask them to confirm
that this is not the case and to switch their phone off. You can refuse to proceed with the meeting
until you are sure that the employee is not recording it.
3) If you have breaks during the meeting, either ask the employee to remove their belongings from
the room during the break or better still, retire to a different room to deliberate.
4) It can be tempting to relieve the tension of a difficult or lengthy hearing with a joke or comment

3. about the employee or their representative once you adjourn but think carefully about how this
would sound played back to an Employment Judge!
5) Remember that comments which are made during private deliberations which are discriminatory,
offensive or malicious are likely to be viewed as so relevant to a case that they should be disclosed.
Partner Laura Kearsley is an Employment Law specialist. For more employment law advice or to
comment on this article contact us to speak to a member of our employment law team.
http://www.nelsonslaw.co.uk/site/news/blogs/audio_recording.html