The National Bullying Helpline hear all too frequently from employee’s who ask whether a recording they have made can be used as evidence against their employer or if they can record a bully at work to prove they are being bullied. Recording conversations at work is a grey area that the Employment Appeals Tribunal (EAT) has accepted in some exceptional cases but dismissed in others.
When a member of staff secretly records a meeting at work, they are probably in breach of company policy and could face a disciplinary. If the employee is recording their colleagues at work, they will most likely destroy any working relationship they had with those colleagues. However, this doesn’t mean that presenting a covert recording, as evidence at an employment tribunal will automatically be disregarded as evidence. In the majority of cases, the employee who has secretly recorded a meeting or disciplinary must be present but recordings of a disciplinary, without the employee present, are unlikely to be admissible.
As the employer, to record a conversation at work, you should seek consent of the person you’re going to record as detailed in the GDPR rules on data, you should, a) Inform anyone you record about the specific purpose of the recording. b) Get their specific consent, such as a form, which they must sign.
The employee must give their consent freely for each conversation you record—never presume that because someone consented to you recording one conversation, they’ll automatically consent to the recording of another.
The law on recording conversations is still a grey area and evolving all the time depending on the facts presented at each case Judges have to be aware of advances in technology and how relevant the covertly recorded evidence might be to case. We recommend that you train your managers and HR staff to expect that your employees are covertly recording conversations in the workplace, and that a tribunal could allow those recordings as evidence at a later date.
A ruling in the Punjab National Bank v Gosain Case has opened the door of possibilities when considering whether covert recordings in the workplace may be admitted as evidence. In this case, contrary to earlier rulings, the Employment Appeals Tribunal allowed a secret conversation to be admitted as evidence.
This ruling contradicts a number of earlier rulings including Amwell View School Governors v Dogherty where the Tribunal ruled that covert recordings taken of management deliberating at the conclusion of a disciplinary hearing were unacceptable, a breach of trust even, and should NOT be submitted as evidence. That conversation had been ‘a private one’ and the employee had not sought consent to record that private conversation on a mobile device.
In Punjab National Bank v Gosain the employer was not so fortunate and appealed to the Employment Appeal Tribunal (EAT). Judge Peter Clark agreed with the original Tribunal ruling that here the circumstances were very different. Gosain’s case involved alleged sexual harassment, sex discrimination and constructive dismissal.
Shortly prior to her resignation Gosain attended a grievance meeting which she secretly recorded. One can only imagine the shock that employer must have felt when personal comments made between management about Gosain were deemed not to form ‘part of the deliberation in relation to the matters under consideration’ so were admitted and played openly across the courtroom.
One of the comments confirmed that the MD had given specific instruction to dismiss Gosain (a pre-determined outcome). Another comment was an admission that key issues raised should be ‘skipped’ and other comments were in Punjabi which, when translated, were found to be sexually explicit and shockingly inappropriate. No amount of appealing on the employer’s part worked as The EAT agreed with the original Tribunal judgment.
This is a significant case. It will open the floodgates. Employees will rejoice in the belief that they can lawfully, secretly, record colleagues and management. We now know the door is not closed. Clearly, but it does depend on the circumstances and the merit of the case
The Employment Appeals Tribunal have indicated that, while covert recordings may be frowned upon, they are here to stay. In light of this, we have put together some advice for business owners and managers.
Talk to an employment law specialist about covert recording
For more information about cover recording in the workplace call 0845 22 55 787