Given the increased number of employee’s using mobile phones which have a voice recording function it is not surprising that many employers are concerned about employees covertly recording grievance, disciplinary and redundancy consultation meetings. The fact that they may be covertly recorded annoys employers as they consider it to be underhand and a breach of privacy.
This issue was recently considered by the Employment Appeal Tribunal (EAT). In Vaughan -v- The London Borough Council of Lewisham (2013) the EAT ruled that Ms Vaughan could not lodge transcripts of over 39 hours’ worth of covert recordings. However it stated that in principle it would have allowed Ms Vaughan to submit secret recordings and transcripts in support of her claims, if such evidence was in “the interests of justice”.
Factual Background
Ms Vaughan raised a number of claims against the Council, including disability discrimination, victimisation and harassment after she was dismissed following an irreparable breakdown in relations between the parties. During the course of the proceedings Ms Vaughan sought to submit over 39 hours of secret recordings which showed that the Council had lied in its formal pleadings and had falsified minutes of disciplinary hearings. Her application to lodge the recordings was rejected by the Employment Tribunal and she appealed that decision to the EAT.
The Legal Position
The use of covert recording within the workplace raises a number of interesting points, including under the Data Protection Act, however when considering whether such recordings are admissible in evidence, an Employment Tribunal will normally only consider how relevant that evidence is to the issues to be determined by the Tribunal. The Tribunal is not normally concerned by the manner in which the evidence was gathered. This principle applies to both recordings taken by the employer and by the employee.
There is EAT authority which states that if an employee submits a transcript of a covert recording of a disciplinary meeting, the part of the recording that relates to the time that the employee was present in the meeting is admissible. However, the part of the transcript that relates to a time when the employee was out of the room, and therefore the employer had a reasonable assumption of confidentiality, is not admissible.
The Decision
Applying the probative value test the EAT indicated that the recordings, whilst taken in a “discreditable” and “distasteful” manner, would have been admissible if Ms Vaughan could demonstrate why they were relevant to the circumstances of her case.
However, Ms Vaughan did not provide enough detail about what the recordings related to or how they supported her case and failed to provide transcripts to accompany them. Accordingly, the EAT declined to admit the 39 hours’ worth of material as evidence and indicated that Ms Vaughan needed to make a more focused and selective application.
Case Comment
This case is a useful reminder to employers that they should be careful about what is said to employees during meetings and remember that the employee may be recording it. In order to mitigate the effect of covert recordings, employers should ensure that they follow good practice and a fair procedure when conducting grievance and disciplinary hearings. Good practice would include taking a detailed note of what is discussed and being careful not to say anything that you would not want an Employment Tribunal to subsequently hear.