What can employers do when faced with a covert recording of a meeting?
We now live in a world where we are all digitally connected, constantly. The time when it was difficult to secretly record meetings, is no more. It is very easy for employees to secretly record a meeting at the touch of a button on their smartphone or smartwatch. Surely this is not right – it’s entrapment I hear you cry – and I agree. But this is the reality.
The HR profession considers that it is good meeting etiquette for the person who wishes to record the meeting to inform the everyone else of their plan to record the meeting before they record it. But this is clearly not at the forefront of an employee’s mind when they step into that meeting room, even if they are specifically asked not to record the meeting or at least say if they intend on recording it.
So what happens if an employee secretly records an internal meeting with the employer – how will this covertly obtained evidence be treated by an employment tribunal?
The general rule is that recordings of the parts of the meeting where the employee was present will be admissible as evidence if the tribunal considers the evidence to be relevant to the claim. However, any secret recording of the employer’s deliberations when the employee was not present, in say a disciplinary hearing, will not be admissible except where:
- they record private discussions that are not part of a panel’s deliberations, but show potential unlawful discrimination; or
- they record conversations that were relevant to issues under consideration taking place during breaks in the hearing (for example where it is admitted that all the grievance issues are not being properly considered in the grievance process).
But if the secret recording covers the taking of legal advice, then that should be protected by legal privilege and inadmissible as evidence.
Ultimately, we are in a world where employers cannot prevent employees from secretly recording meetings, but here are some thoughts on what employers could do to put themselves in the best position to deal with it:
- Ensure that your disciplinary policy expressly prohibits employees from secretly recording meetings; that will help establish clear ground rules for how the secret recording will be treated (i.e. misconduct and therefore a disciplinary issue).
- When you are going into a meeting with employees, repeat this information at the start of the meeting and ask them to confirm they are not recording it. This may mean you can take separate disciplinary action against the employee, but sadly it doesn’t prevent the recording being admissible evidence in a tribunal claim.
- If the employee says they intend to record the meeting, you could allow this but ensure that you also record the meeting.
- If there is a break in the meeting, it is best for you as the employer to leave the room. If the employee leaves the room they may well leave the device recording.
The above are all practical things you can do manage the situation if it arises, but it can’t ensure the recording won’t be inadmissible as evidence in any litigation.
Ultimately, the best advice is to only do and say things in the meeting (including the breaks) that you would feel comfortable being disclosed as evidence. Sometimes it helps to be paranoid.