The scenario is this: an employee is summoned to a disciplinary meeting with the employer to discuss an allegation of misconduct. The employee, not trusting that the employer’s minutes of the meeting will be an accurate reflection of what was said, covertly records the meeting. She is dismissed and then decides to use the recording as evidence at the hearing of her unfair dismissal claim. Can she do so? It is a tricky issue that crops up fairly regularly.
Ian Mann, barrister of 13 King’s Bench Walk, Temple, explains the case that says, more or less, yes. In a meeting with the Hertfordshire school she worked at as a teaching assistant, a Mrs Dogherty secretly recorded not just the “open” part of the meeting she attended but also the “private” session after she was asked to leave the room whilst the school governors considered her fate. Her contract of employment did not forbid covert recordings of meetings.
In court, the school argued that the governors’ rights under European Human Rights legislation had been infringed. This was rejected by the Employment Appeal Tribunal (EAT). The central issue, as far as the recording of the “open” part of the meeting was concerned, was to consider whether the evidence on the tape was relevant to Mrs Dogherty’s unfair dismissal claim. It was and so was allowed to be heard.
As Ian Mann points out, this is not new law – the EAT relied on a 2004 case as confirmation. Furthermore, English courts are normally more interested in the quality of the evidence than in how it was obtained. Put another way, does the end justify the means? In this case it did, but only as far as the “open” part of the meeting.
A different result applied to the “private” session – when Mrs Dogherty had been asked to leave the room for the governors’ private discussion. The recording of that part of the meeting was not allowed in evidence.
This is a difficult issue for employers. How should you approach it? Start by drafting or amending your contracts of employment and employment handbooks to ban any covert recording of disciplinary meetings. If, as an employer, you face conducting a disciplinary meeting, state that you do not agree to the meeting being recorded and ask if the employee is in fact doing so. If the employee does so and lies, it could affect their credibility. However, raising recording as an issue can be a double-edged sword; there is no reason why, if an employer intends to conduct proceedings fairly, they would not agree to a tape being made. And it is likely that the file will be allowed in evidence anyway.
You could also consider arranging your own recording (not covertly, of course) thus meaning that there is no need for the employee to make their own copy. Of course, this also means that you have to conduct the meeting fairly. An Employment Tribunal is likely to be impressed by an employer who tapes disciplinary meetings because it demonstrates openness and confidence in dealing with the meeting. There can also be no argument in Tribunal as to what was said at the meeting. It is of course important to ensure that whether taped or not, good notes of the meeting are taken, and that whoever is present in the meeting has taken legal advice beforehand and is aware of what ought and ought not to be discussed at such meetings.