More and more employees have smart phones and have them with them at work. This has made it much easier for individuals to secretly record conversations and meetings without anyone at the time knowing.
If you are considering secretly recording a meeting it is important to note you do not have an express legal right to do this. Further, it may be expressly prohibited in your contract of employment.
If an employer discovers you have secretly recorded a meeting this could result in disciplinary action being taken against you. However, starting disciplinary action because you have made a secret recording could amount to victimisation under the Equality Act 2010 if the recording was made to provide evidence of discrimination at work.
Many employees who consider they are being treated poorly or subjected to harassment or bullying at work may have sought to gather evidence of this by recording meetings, one to one conversations or disciplinary hearings.
Secret recordings will only be admissible as evidence with the express permission of the Employment Tribunal. The Employment Tribunal would consider an application and use its discretion on whether to allow the employee to rely on the recording as evidence. If the recording is relevant to a specific issue, Employment Tribunals are increasingly allowing the content of the recording to be used as evidence as long as the recording is submitted as a transcript with a copy of the recording made available to both the Tribunal and the employer.
Case law over the last few years has shown the Employment Tribunal will often draw a distinction between recordings that are made whilst the employee is present and those when the employee is not present. For example in a disciplinary where the employee leaves the room for the panel to make a decision but leaves the recording device behind to record the panel’s discussion.
It has been shown from the case law decisions the Employment Tribunal are more willing to allow secret recordings of meeting when the employee is present. Once the employee has left the room the panel should be able to have an open and frank discussion. An Employment Tribunal will deviate from this position if the employee alleges that the recording when he/she had left the room has evidence of discrimination that is directly relevant to his/her claim.
A case which demonstrates this is Punjab National Bank (International) Limited and others v Gosain UKEAT/0003/14, the employee pursued claims of sexual harassment, sex discrimination and constructive unfair dismissal. She had secret recordings of the disciplinary and grievance hearing, including the panel deliberations when she was not present. The employee was able to rely on the recordings due to the content being directly relevant to her claims.
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