Have you thought what would happen if one of your employees decided to secretly record meetings with their manager with the sole intention of collecting evidence to use in an Employment Tribunal?
It's a trend that happening more and more in the workplace and which looks set to continue as sophisticated portable recording equipment becomes even more accessible to employees via their smartphones and devices.
In a recent case, (Punjab National Bank Limited v Gosain), the Employment Appeal Tribunal held that when an employee hides recording equipment and captures comments made during his or her employer's private deliberations during a grievance & disciplinary hearing, then this evidence is admissible in an Employment Tribunal if it does not form part of the employer's deliberations on the matters in question.
So is this fair and reasonable to employers?
Certainly, tribunals have described covert recording as "very distasteful" and "discreditable". But case law suggests that this in itself may not be enough to make them inadmissible as evidence.
The employer was alleged to have made wholly inappropriate comments about the employee when she was out of the room, which were (allegedly) captured on convert recording equipment.
The EAT stated that the correct test is to undertake a balancing exercise, setting the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in the internal grievance/disciplinary context.
DO'S & DON'TS FOR EMPLOYERS
All UK-based SMEs are eligible to apply for the scheme, regardless of the sector they operate in, but must have either an aspiration to work on a NDA site or be keen to increase the volume of the work they already undertake across the NDA estate.
- Employers may want to prohibit recording of meetings in their policies and procedures, but remember that this is unlikely to deter all your employees.
- Managers should always be on guard to the possibility that their comments are being recorded during any meeting when employees are out of the room, especially if they leave their coats or other items of personal property in the room.
- Whether or not you decide to record a meeting, it is wise to take detailed notes and have a note taker present.
- Make sure managers are trained to deal effectively with difficult meetings with employees, such as disciplinaries and grievance meetings, and that they are aware that everything that happens during the course of these meetings can form part of the evidence in an Employment Tribunal claim.
- You should consider arranging your own recording (not covertly, of course) meaning there is no need for the employee to make their own copy. An Employment Tribunal is likely to be impressed by an employer who records disciplinary meetings as it demonstrates transparency.
- Cultivate an open and supportive atmosphere in the workplace, where employees do not feel any need to make covert recordings.
- If an employee has a physical or mental impairment that makes taking their own notes difficult, then allowing them to take an audio recording of the meeting may be option, if there is no other reasonable alternative.
GET IN TOUCH
Taylors can help with advice about these issues and can also provide bespoke training for managers on handling disciplinary and grievance issues.
For advice on this or any other aspect of employment law, contact Will Clayton on 0844 8000 263 or via email at firstname.lastname@example.org.