United States: Got You Taped – How Covert Recordings By Employees May Be Admissible As Evidence

Last Updated: July 30 2013
Article by Andrea L. Ward

Best practice in relation to disciplinary proceedings is to ensure that proper notes are kept and issued to the employee as soon as possible afterwards. Whilst the accuracy of notes can be challenged by both parties (mostly as a poor record of what was actually said, or done, in a hearing), audio recordings are more difficult to discredit. Most employers do not tape record their employee meetings, or disciplinary proceedings, but there is a growing trend of employees recording such hearings, presumably to protect themselves, or raise a complaint if they are dismissed, or subjected to other sanctions. High-tech, cumbersome recording equipment is not required – just an iPod, or smartphone will do – and employees can record lengthy discussions without detection and back up those recordings in case they are lost or wiped.

Covert recordings can come to light during employment tribunal proceedings, usually at disclosure stage, but sometimes during a hearing (for example when an unrepresented claimant introduces this evidence late). Employers can be caught off-guard by such developments in a case and even if their dismissal procedure was fair and reasonable, the fact that the employee has made a secret recording (which they naturally say casts doubt on the process), will raise doubts and increase costs, as the matter of admissibility is decided by the tribunal.

There are no specific rules for employment tribunals about the admissibility of covertly obtained evidence. Instead, the employment tribunal has a wide discretion over whether to allow evidence to be considered. If the evidence is relevant and it would be proportionate to allow it, then it may be admitted. However, the employment tribunal may still order that such evidence be excluded, if it is disclosed late; would breach the Human Rights Act 1998; or should be excluded as a matter of public policy.

There is case law on the subject, from Chairman & Governors of Amwell View School v Mrs C Dogherty UKEAT/0243/06, in which the EAT ruled that covert recordings of employment meetings (especially disciplinary hearings), can be admitted as evidence in employment tribunals, but only the recordings made while the employee was present can be used. Recordings of panel deliberations (where the employee is not present) are not admissible.

The claimant in this case had been dismissed for gross misconduct and issued a claim of unfair dismissal in the employment tribunal. Following the standard disclosure order, the claimant's lay representative disclosed a large number of documents, including three "records" of the disciplinary and appeal hearings, including the panel of Governor's deliberations. The fact that the claimant had made these recordings of her employer without the panel's knowledge or consent became apparent at the tribunal hearing, which was then adjourned. However, the employment tribunal ruled that the claimant would be able to admit the recordings of the main hearings as evidence, if she disclosed the actual recordings and transcripts, before the rescheduled hearing.

The respondent sought a review of the employment tribunal's decision and argued at the EAT that the recordings should not be admitted on several grounds. The argument that there was a breach of human rights (the Governor's right to respect for private and family life) failed, as the Governors were performing a quasi-public function and could not rely on such privacy. The EAT also found that the recordings could not be excluded on the grounds that they had been made 'illegally', unless it could be shown that there was authority for that, or there were public policy reasons to exclude them – for example, the recordings were made in breach of contract or in breach of any statutory provision. There were no such provisions in this case and the claimant was able to argue that her right to a fair hearing on the best available evidence would be compromised if the recordings were excluded.

More recently, in February 2013, the EAT considered the case of Vaughan v London Borough of Lewisham UKEAT/0534/12, which involved arguments relating to the claimant's application to adduce in evidence 39 hours of recordings she had made of her interactions with managers and colleagues, to support her claims of disability discrimination, victimisation and harassment, whistleblower detriment and unfair dismissal. The recordings included recordings of disciplinary hearings, where the employer made official notes, the accuracy of which were disputed by the claimant. The claimant in this case did not supply copies of the transcripts, nor the 'tapes' (which were actually held on an iPod) and the employment tribunal rejected her application to submit the recordings as evidence, on the grounds that she had not shown that they were of probative value. The EAT acknowledged the correctness of this decision as the claimant refused to provide the recordings and transcripts, but decided that there was no absolute reason why none of the recordings should be admitted in evidence, as parts of them could be potentially relevant to the issues and ought to be admitted in the interests of justice.

In his judgment, the Honourable Mr Justice Underhill made this comment:

"We should say.. that the practice of making secret recordings in this way is, to put it no higher, very distasteful; but employees such as the claimant will not doubt say that it is a necessary step in order to expose injustice. Perhaps they are sometimes right, but the respondent has already made it clear that it will rely on the claimant's conduct in making these covert recordings, as illustrative of the way in which her conduct had destroyed any relationship of trust and confidence between her and it."

The EAT also recognised that the respondent in this case would rely on the claimant's recordings as evidence as to her credibility, since she had been asked on previous occasions whether she had made such recordings and had denied it. As an aside, last month the EAT separately upheld a decision to award costs against the Claimant in this case (estimated to be around Ł87,000), despite the fact she was unemployed and unrepresented before the tribunal.

These cases are different to cases of employee monitoring by employers (which is covered by the ICO's Employment Practices Data Protection Code, Part 3). It is rare for covert monitoring of employees to be justified and it should only be conducted in exceptional circumstances where there is a legitimate business reason and it is done as part of a specific investigation into a serious allegation (of fraud, or other criminal activity for example).

Employers should be aware of the risk of employees making covert recordings, especially in meetings and disciplinary hearings, as their evidence may be admissible in an employment tribunal. To address this risk, employers should issue clear ground rules on the conduct of hearings, expressly banning any recordings (other than notetaking), and obtain the employee's confirmation that they understand those rules. It is sensible to make a note that this has been explained to the employee at the start of any hearing and it should be noted that the employee confirms they understand and declare that they are not making any recording. This is a legitimate instruction and any breach of this 'ground rule' may be actionable separately. Covertly recording your employer is a breach of confidentiality and a breach of the implied term of mutual trust and confidence, which itself can evidence a breakdown in the employment relationship and will support an employer's case for dismissal in many cases. However, it is still sensible to spell this out in company policies and at the start of any disciplinary hearing, to avoid a dispute later. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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