Can Employees record disciplinary meetings?
Can employees record disciplinary meetings, and would a recording be admissible in a tribunal?
We act for many employers in dealing with disciplinary and grievance matters brought by or against their employees. One of the questions that often arises is whether the meeting should be recorded or not.
Most employers conducting a disciplinary hearing will have a note taker present but queries can often arise about the quality of the notes that have been prepared. Many employees now are using smart phones to record what is said in the meeting as they are either not able to take notes at the same time as answering questions or, because they do not trust the notes the employer is taking and wish to have their own record of what was said.
If the employer says something during the course of the meeting which is unhelpful to their case then the employee will be only too keen to produce the recording to show the employer in a bad light. The employer’s case could be completely undermined by what they said in the meeting and the question often arises as to whether an employee’s covert recording would be admissible before a Tribunal.
The general rule in English law is that a covert recording would be admissible as evidence before an Employment Tribunal or Court. Provided material is relevant to the issues in the case then it is likely that a transcript of the meeting or even a recording could be played at the trial.
An employee thinking of making a clandestine recording of a disciplinary meeting should be aware that neither Tribunals nor the Courts welcome the practice and should expect to be criticised for doing so. However, if that recording reveals the employer’s representative making comments or behaving in a way that would undermine its case then that consideration may pale into insignificance for the employee.
This tactic can backfire and in a recent case, a Claimant who did covertly record her disciplinary meeting lost. The employer submitted to the Court that the Claimant’s conduct in making the covert recording illustrated the way in which her conduct generally had destroyed any relationship of trust and confidence between it and her. Her credibility was also tainted because over the course of the meetings that she recorded, she was asked whether she was making a covert recording and she denied the fact. Although she was allowed to put the recordings before the Tribunal, in the end it did her case no good.
What should employers do?
The lessons for employers here are firstly that before every disciplinary or grievance meeting you should ask the employee concerned if they are recording the meeting. That will then force them to either come clean or force them into a lie which will assist you later on as it will affect their credibility as a witness.
Secondly, it would be sensible to include a clause in all Contracts of Employment to say that covert recording of disciplinary or grievance meetings is forbidden. That means that should an employee decide to covertly record the meeting in breach of such a term, an employer would have an argument to say that any subsequent dismissal was for breach of contract rather than for any other reason which would potentially strengthen the employer’s hand.