What are the legal pitfalls of covertly recording meetings?

Here at SSG we are frequently asked about how to deal with the risks of an employee covertly recording a grievance or disciplinary meetings and whether that recording can then be used as evidence at a tribunal.

If an employer has a policy that recording meetings is prohibited it will become a disciplinary matter if an employee is found to have made a covert recording.

Also, if an employee breaches such a policy but their tribunal claim is still successful it will usually reduce the amount of compensation that would have been due to them.

The grey area

But whether a recording can be presented at tribunal even when it was made covertly is a grey area.

An example where the covert recording could be allowed as evidence (for the employee’s case) would be when the individual has captured evidence of misconduct or wrongdoing that would otherwise not have come to light. This could be especially relevant if the employee has been of bullied or harassed by a more senior colleague or manager.

The ability to refer to covert recordings in tribunal proceedings depends on what has been recorded.

It might be that an employee has made a recording which shows that the original notes or transcript were an inaccurate representation of the meeting. For example, the notes alone may put the employer in a favourable light when reality of what occurred would be less favourable to them. A recording might show that the employer’s written version of events was a misleading representation of what was said. In such a case a judge may allow the covert recording as evidence because it would be the only way to definitively show what had been said in the meeting.

But what about recordings of discussions about an employee but where they were not present?

These are recorded conversations from which the employee was excluded and should not have been privy to, but which are subsequently acquired. These could be captured by a phone or on a Teams call which were left on record. Generally, these recordings would not be admissible as evidence at tribunal on the basis that such discussions are intended to be confidential between the participants.

But a tribunal may rule that such a covert recording can be admissible if they showed evidence of discrimination, harassment or bullying.

Source: Gavin Parrott