SH comments on how covert recordings in proceedings can be then used in litigation

Paul Reeves, employment partner at Stephenson Harwood (SH), has commented on how covert recordings in disciplinary and grievance proceedings can be used in subsequent litigation.

He said: ‘The employment tribunal [ET] rules allow tribunals a wide discretion to determine whether evidence is admissible. Essentially, evidence will generally be admissible if it is relevant to an issue between the parties. The following applies to both disciplinary and grievance proceedings.

‘Previously, case law stated that discussions in “open hearings” recorded covertly by the employee will be admissible before the ET, but recordings of private “deliberations” between those adjudicating the disciplinary and grievance are not, so long as such conversations formed part of the usual course of proceedings and not whimsical comments unrelated to the issue at hand.’

Reeves continued: ‘In a recent case, the claimant resigned alleging sexual harassment, sex discrimination and constructive unfair dismissal. During both her grievance and disciplinary hearings, the claimant covertly recorded both “public” and “private” conversations connected with the hearings. The employer objected to the admissibility of the private conversations. The ET ruled that the private discussions were admissible. The Employment Appeal Tribunal [EAT] agreed.

‘The contents of the private deliberations included vulgar references about the claimant and conversations detailing the fact that the manager hearing the grievance was deliberately avoiding the key issues that required consideration in order to perform a fair hearing.’

According to Reeves, technology such as smartphones has made it easy for individuals to make covert recordings — ‘no longer will the clunk of a tape recorder blow an individual’s cover’, he said. Increasingly, added Reeves, we are seeing all types of meetings being recorded covertly — not just disciplinary and grievance hearings.

‘This case serves as a warning to be extra vigilant. It is likely that claimant advisers will encourage their clients to record proceedings covertly, especially in particularly contentious cases.’

SH’s advice is to ask the individual at the outset if they are recording the hearing or meeting. If yes and you are comfortable having it recorded then:

  • Have the device where it can clearly capture everyone’s voice
  • Also keep a contemporaneous note of the hearing in case the recording is lost or is of poor quality
  • Agree who will be responsible for producing the transcript and who will pay (for example will you share the cost?)
  • Ensure that each party has a copy of the recording at the conclusion of hearing or meeting — you don’t want the individual to walk away with the only recording
  • Keep the device away from any background noise (for example air-conditioning vents or windows)

Reeves said: ‘However, if you are not comfortable being recorded, then you can address that with the individual. You do not have to agree to the meeting being recorded.’

He concluded: ‘Even if the individual denies they are recording the hearing, assume they are and ensure that all deliberations are conducted in a room separate to the hearing or meeting. You must not discuss the matter if the individual leaves the room for any period of time during the hearing. Just as with any written communication, be careful to avoid any comment during your meeting or deliberations you would not be happy for the individual to hear.’