Covert recording

Employment tribunals generally frown on covert recording, regarding it as “distasteful”. Even so, as smart phones become widespread, covert recording appears to be on the increase, so it is worth knowing the rules.

In principle, evidence from a covert recording can be taken into account by the tribunal in tribunal hearings (Vaughan v London Borough of Lewisham [2013] UKEAT0534/12/0102). The more relevant the recording, the more likely the tribunal is to consider it.

There is no rule that tribunals will not consider recordings of conversations that the employee was never meant to hear, such as the private deliberations of a grievance or disciplinary panel (Punjab National Bank (International) Limited v Gosain [2014] UKEAT/0003/14/SM).

Even though the tribunal can listen to a covert recording, claimants should be wary, and should only insist on including recordings, or parts of recordings, that are very significant in terms of resolving an important issue in their claim. An example would be in a discrimination claim, where an employer is recorded using obviously homophobic or racist language. Claimants should prepare accurate typed transcripts of the parts of the recording they want to rely on and should be prepared to give the employer access to both the transcripts and the entire recording.

Unreasonable behaviour, for example insisting on including recordings of irrelevant material for use at the hearing, is likely to result in a costs order (see page 421).

Some employers use workplace procedures to expressly ban secret recording of conversations and internal meetings. If discovered while still employed, covert recording can potentially lead to a fair dismissal, either for breaking the employer’s rules or for breaching the mutual duty of trust and confidence (see page 60).

Tribunal proceedings must never be recorded. This is a criminal offence.