Making covert recordings

One of our members was recently asked by an employee if he could make a recording of his disciplinary hearing. His request was refused, but it later emerged that he had gone ahead and secretly recorded it on his iPhone anyway.

As he is now threatening to use it in a tribunal claim, our member wants to know the legal position of this type of recording is it relevant evidence or will it be ignored?

Is there any right to record?

The starting point is the ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code). It makes no mention of whether either party has the legal right to make an audio recording of a disciplinary hearing. So unless your procedures specifically allow for it and this is fairly unusual you are under no obligation to agree.

Suitable alternatives available

As far as the Code is concerned, the employee has a number of alternatives.

Firstly, they have the statutory right to be accompanied to the hearing for example, by a workplace companion. Secondly, the employee, their companion or both can make written notes of your discussions.

Finally, as a matter of good practice, employers are encouraged to ensure that there is someone present at the hearing to take notes. These must be made available to the employee if so requested. Ideally, the note-taker should be independent not a witness, or someone who dealt with the disciplinary investigation. This will prevent any allegations of procedural unfairness or bias.

Tightening up your procedures

However, the existence of a covert recording may become problematic if a dispute eventually ends up before the tribunal; they are more interested in the quality and relevance of any evidence, rather than how it was obtained.

For example, in the case of Chairmen and Governors of Amwell View School v Dogherty 2007, the Employment Appeal Tribunal (EAT) accepted a covert recording of a disciplinary hearing because:

1. The employer hadn’t banned them; and

2. It was relevant to the claim (which was for unfair dismissal).

Not always the case?

This case (which was heard pre-Code) suggests you must clarify your position on the recording of disciplinary hearings.

However, in other cases, employees haven’t always been so lucky; requests have been refused. But as this risks an appeal to the EAT, which could allow the recording, we would suggest that you err on the side of caution. Make it clear in your disciplinary procedures that covert recordings during meetings and hearings are not allowed.

If an employee asks to record a hearing, refuse their request in writing. If you later discover they have done so covertly, you should point this out to the tribunal.