Secret recording?

Clandestine recordings are becoming more frequent because most people have a mobile phone. On balance, these are generally a bad idea.

The general rule is that a tribunal will usually take relevant secretly recorded evidence into account at a hearing (Chairman & Governors of Amwell View School v Dogherty (UKEAT/0243/06). However, a tribunal will not take into account secret recordings of any parts of the meeting that were not supposed to be heard by the member, such as the disciplinary panel’s deliberations (Williamson v Chief Constable of Greater Manchester Police UKEAT/0346/09/DM).

Even if a tribunal takes secretly recorded evidence into account, it may well cut any compensatory award to reflect its disapproval of using “underhand” tactics to collect the evidence.

Large employers are increasingly likely to ban clandestine recording as an express term of the disciplinary policy. Alternatively, many employers deal with this issue by securing a promise from the participants, at the start of the meeting, that no secret recording devices will be used.

Where discovered, clandestine recording can have disciplinary consequences of its own, including even a fair dismissal.