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Can An Employee Tape Record Disciplinary Related Conversations?

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Would secret recordings in a disciplinary hearing stand up in court if the case went that far?

In the Amwell View School Governors v Dogherty case, a teacher was dismissed for gross misconduct. She claimed unfair dismissal and produced private tape recordings from her disciplinary hearing and appeal as evidence. These recordings included the parts of the meeting in which she was in the room, and questionably, those conversations which took place in her absence when she was asked to leave the room so a decision could be made.

The Employment Appeal Tribunal (EAT) was unhappy with the covert recordings. But it agreed that the recordings which took place in the teacher’s presence could be used as evidence. The EAT was concerned that the recordings of the Governors’ private deliberations might be a matter of public policy. They believed that allowing the covert evidence to be disclosed as evidence, in the circumstances of this particular case, might give rise to potential satellite claims.

The case of Punjab National Bank v Gosain had similar facts. The EAT ruled that the covert recordings could be used as evidence and drew a distinction between the circumstances of the two cases. So the fact that a tape recording was made in secret is not, in itself, a ground for ruling that it cannot be used as evidence.

So are employers completely unprotected from the use of covert surveillance? Not entirely, as a Tribunal will still consider whether the evidence is relevant to the legal issues. The Tribunal will try to balance the rules of admissibility against public policy. But to make this decision, the Tribunal must listen to or watch the evidence before it can make a decision. Even if the members of the Tribunal decide that the evidence cannot be used in court, then they have still seen the evidence and so you could arguably say that the members of the Tribunal could be affected by it. This can be particularly difficult in cases where there is controversial evidence, such as tape recordings.

The general legal principle is that a case should be decided on the basis of all the available evidence. But if this evidence has been obtained through unreasonable conduct, then the Tribunal could penalise an employee with a high costs order even if they win their claim. This will depend on how the evidence is obtained and how it is disclosed. But the use of costs orders can act as a deterrent to employees.

Employers should be aware that their employee may record conversations if they are undergoing a disciplinary procedure. If an employee asks if they can record a meeting, you should consider the purpose of the meeting, the possible outcome and the possibility that the recording may be used as evidence. When you consider that an employee may covertly tape a conversation, even if they are asked to step out of the room, then employers should keep the law in mind and ensure that the conversation remains professional at all times.

Employers should also remember that they are able to monitor their employees in return. If the appropriate polices and procedures are in place, then an employer can monitor their employees’ work emails, phone calls and internet usage.

If you are concerned about disciplinary procedures or policies please contact a member of our Employment team for further advice.

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