Since taped conversations can be evidence, should they be banned or encouraged?
A recent Employment Appeal Tribunal decision is a reminder that secretly recorded disciplinary and grievance hearings may be admissible as evidence in tribunal proceedings.
In the case, Punjab National Bank v Gosain, an employee recorded remarks made between the managers involved in the disciplinary and grievance meetings while the employee was out of the room. The EAT allowed the recordings to be used as evidence because they were not part of the managers' deliberations on the issues being discussed in the meetings, which are protected in law from disclosure. The fact that the comments were made in private, and the recordings made secretly, did not prevent them being revealed in the tribunal.
Employers need to be aware of this risk and ensure that managers conducting disciplinary and grievance meetings know their comments could be played back during tribunal or court proceedings – especially now that smartphones make such covert recordings easy.
So, what can employers do to minimise this risk?
Guidance
Employers do have choices to make regarding recordings. One solution would be to put in place guidance for HR teams and managers that provides a framework for dealing with disciplinary and grievance meetings, including how they should be structured and how decisions and findings of fact should be made – thereby avoiding any unnecessary comments in the first place. Employers need not necessarily be fearful of potential recordings - they are only likely to affect a tribunal’s decision if the comments recorded reveal preconceived judgments on the part of managers - but it is important to ensure staff are fully aware they must not make potentially damaging remarks in the first place.
Blanket ban
Employers could decide that a blanket ban on recording meetings is appropriate for their organisation.
If opting for a blanket ban, it is good practice to state this clearly in the disciplinary and grievance procedures. Although it may not deter all employees, it is likely to discourage the majority. Employers could state at the start of a meeting that it should not be recorded. There is a small risk in doing this that it alerts employees to the idea; but if employees were to lie, and say they are not recording when they are, this will at the very least damage their credibility in any subsequent proceedings.
Perhaps a more practical solution is for the managers involved to move to another room when deliberating. This will not only ensure they are not being recorded but may save costs and time arguing about whether the material is admissible or not.
Open recording
Employers could opt for a proactive apporach and have all meetings openly recorded in an effort to keep control of the situation. This gives the employer the advantage of taking control. If the organisation is following a fair and transparent process it should have no misgivings about such recordings being made. Employers should bear in mind, though, the resources required, as it can take an enormous amount of work to transcribe accurately a long drawn-out meeting.
Tribunal hearings
One final point to consider is whether an employment tribunal will even want to read transcripts of meetings. In the case Vaughan v London Borough of Lewisham a claimant failed in her attempt to lodge over 39 hours of recordings as evidence. If employers wish to use recordings as evidence in a tribunal they should:
- provide their own transcripts or use an independent transcriber
- ensure the transcripts are relevant to the issues to be decided
- submit the original recording with the transcript.
Whichever approach employers choose, they would be wise to ensure their managers are aware of what constitutes appropriate behaviour, and advise the manager chairing the meeting to behave at all times as if the proceedings were being recorded. This should avoid any damaging remarks being inadvertently made – whether recorded or not.
Natalie Painter is a solicitor in the employment team of law firm Blake Lapthorn
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