Employers will often ask whether recordings made by an employee,
without knowledge or consent, could be admissible as evidence at a
Tribunal. The answer, as unfortunate and unfair as it might seem, is
yes, albeit not in every case. There’s no doubt about it - employers and
HR professionals should always be alert to the possibility that an
employee might be recording a meeting.
Tribunals have described
covert recordings as ‘very distasteful’ and ‘discreditable’.
Nevertheless, despite these comments the case law suggests that this in
itself will not be enough to make the recordings inadmissible as
evidence. The general rule is that the recording of the parts of the
meeting where the employee was present may be admissible before an
Employment Tribunal if the Tribunal believes that the recording is
relevant evidence, but any covert recording made of the private
discussions of, for example, a disciplinary hearing panel will not be
However, even this position is not as clear-cut as you
might think, and there have been some interesting exceptions to this
rule in recent cases:
Punjab National Bank (International) Ltd v Gosain
Gosain not only recorded a disciplinary hearing without informing her
employer, but she continued to record the private conversation between
her employer’s representatives once she had left the room. The
Employment Appeal Tribunal said that the comments made during those
private discussions fell outside of the disciplinary panel’s
deliberations on the subject matter of the disciplinary hearing and the
recordings were ruled admissible.
Fleming v East of England Ambulance Service NHS Trust
was decided in this case that the employee was entitled to use his
covert recording of conversations which had taken place between panel
members during breaks in a disciplinary hearing as evidence for the
purpose of his claims of unfair dismissal and disability discrimination,
except in so far as the recordings were covered by legal professional
privilege (that is, amounted to conversations between lawyer and
client). In the unusual circumstances of the case, it was decided by the
Employment Appeal Tribunal that the decision to dismiss could not be
properly assessed without reference to the content of the recorded
What can employers do to prevent covert recordings?
the simple answer is very little and there doesn’t seem to be much
reassurance from the Tribunals on this matter. However, there are
practical steps that employers can take to help reduce the risk.
Tribunals have referred to the fact that very rarely is “covert
recording” stated in disciplinary policies as amounting to gross
misconduct. By including within policies a prohibition on covertly
recording disciplinary meetings, employers can specify that failure to
comply will constitute a disciplinary offence.
these steps may mean that an employee who covertly records a meeting
might be guilty of misconduct, it does not necessarily mean that the
recording itself will be inadmissible as evidence. It’s therefore
important that managers and HR advisers remain vigilant and ensure that
they maintain discretion and a professional demeanour at all times, as
you just don’t know for sure whether you are being recorded.
long as employers are acting properly and following sound procedures,
then regardless of potential covert recordings, there should be nothing
to worry about.