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Should employee record disciplinary related conversations?

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Should you be recording your interviews and disciplinary hearings? Do you know how secret recordings stand up in court?

Recent cases have seen recordings made in secret used as evidence in court. However there are certain sanctions to control these recordings. So do you know when you should be recording? Or who could be recording you?

In Amwell View School Governors v Dogherty 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 secret recordings. But they agreed that the recordings which took place in the teacher’s presence could be used as evidence. The EAT were concerned that the recordings of the governors private deliberations might be a matter of public policy. They believed that allowing the secret evidence to be disclosed as evidence, in the circumstances of this particular case, might give rise to even more disputes.

The case of Punjab National Bank v Gosain had similar facts. The EAT ruled that the secret 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 is cannot be used as evidence.

So should you secretly record all of your interviews and disciplinary hearings? You can ask to record your meeting, but you should be aware that secret recordings or recordings of conversations where you were not present will probably be excluded as evidence in court. This is a general guideline but the Tribunal will judge each case and evidence on its facts. The Tribunal will consider whether the recording you have provided is relevant to the legal issues. They will try to balance the rules of admissibility against public policy. To make this decision, the Tribunal must listen or watch the evidence. Even if they decide that the evidence cannot be used in court, they have still seen the evidence and so your employer could argue that the tribunal is biased. 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. If this evidence has been obtained through unreasonable conduct on your part, then the Tribunal could penalise you with a high costs order even if your claim is successful. The costs order will be dependant on how you obtained the evidence and how it is disclosed.

You should also remember that your employer is able to monitor you in return and retain any data they hold. If the appropriate polices and procedures are in place, then an employer can survey your work emails, phone calls and internet usage. You could make a request for access to any confidential records held about you under the Data Protection Act. However this is subject to the exceptions that are set out within the Act.

If you are concerned about a disciplinary procedure or any other employment issue please contact a member of our Employment Team for further advice.

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