![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201509.jpg)
Making secret recordings and the law
[ch 6: pages 37-38]It has never been easier to make secret recordings of conversations with colleagues and managers, now that nearly everyone has a smartphone, but the practice brings very serious risks for members. It is not usually a good idea.
If a claim reaches an employment tribunal, tribunal judges are generally unsympathetic to claimants who used smartphones and other devices to secretly record conversations at work, viewing the practice as “distasteful”. Even so, in principle, relevant evidence from covert recordings can be considered, and every so often, a highly relevant recording emerges, revealing, for example, sexist, racist or homophobic attitudes held by key decision-makers or colleagues. Here is an example:
Mr Bennett was an openly gay solicitor. Using his mobile, he secretly taped a one-to-one meeting with his manager at a coffee shop when his manager commented that “if your strategy was to hang outside lavatories, if it develops work I would say it was the best strategy in the world”. The tribunal read a transcript of the conversation and listened to relevant sections of the secret recording. The casual homophobia displayed was key in shifting the burden of proof to the employer to show that Bennett’s sexual orientation played no part in investigating his grievance, and resulted in a finding of sexual orientation discrimination.
Bivonas LLP and other v Bennett [2011] UKEAT 0254/11/3101
In general, a tribunal will take secretly recorded evidence into account at a hearing if it is relevant to an issue in the case and helps resolve it fairly (Chairman & Governors of Amwell View School v Dougherty UKEAT/0243/06).
Any evidence must be focused and highly relevant to key disputed issues. For example:
Ms Vaughan made 39 hours of secret recordings at work. The tribunal refused to allow her to rely on the tapes, but only because there were far too many, and she hadn’t shown which parts were relevant and why. A more focused and selective application, accompanied by a transcript of the parts she wanted to rely on, would probably have been allowed by the tribunal.
Vaughan v London Borough of Lewisham [2013] UKEAT 0534/12/01022013
It is not the law that secret recordings of conversations an employee was never meant to hear (such as private deliberations of a disciplinary panel) will never be considered by an employment tribunal. What matters is the relevance of the information on the recording to the issues in the case. For example:
Ms Gosain lodged a grievance complaining of lack of rest breaks when pregnant. At her grievance hearing she left her mobile phone on record in her jacket pocket during the hearing break. On the recording, a panel member was heard saying the managing director had already instructed that Gosain was to be sacked. Another outlined his plan to skip through the pregnancy-related points of the grievance as quickly as possible.
Gosain claimed sex discrimination and harassment. The EAT allowed the recordings in evidence, confirming that there is no rule that recordings of conversations an employee was not supposed to hear can never be relied on. What matters is the relevance of the comments, balancing the interests of justice against the employer’s interest in private conversations remaining confidential. In this case, the secret tape was highly relevant, as it strongly suggested the employer was “going through the motions”. In addition, the remarks were inappropriate to the deliberations of a grievance panel, so they had no protection from disclosure.
Punjab National Bank v Gosain [2014] UKEAT 0003/14/0701
As indicated above, making secret recordings carries serious risks. In particular:
• even if a tribunal decides to take the recording into account, they may cut any compensatory award to reflect disapproval at “underhand” methods of collecting evidence;
• a member who insists on including recorded material that is irrelevant or unfocused risks being ordered to pay the employer’s legal costs, on the basis that they are conducting their claim “vexatiously, abusively, disruptively or otherwise unreasonably”;
• being discovered secretly recording work discussions can have very serious disciplinary consequences. Many employers now expressly ban this practice, but even without an express ban, employers are likely to argue that the practice is a breach of the implied duty of mutual trust and confidence justifying dismissal.
Many large employers have modified their discipline and grievance procedures to include an express ban on secret recording, including in discipline or grievance meetings.
Court or employment tribunal proceedings must never be recorded – not even telephone hearings. This is contempt of court and a criminal offence, carrying a large fine or even jail.