Employers be warned - Going under cover…

Gone are the days of the tape recorder; clunky, larger than a VHS player, with the sound quality of a Motorhead gig. Many smartphones now have, as standard, the facility to record good quality audio. Due to this advancement, we have seen an increase in employees using the latest technology to covertly record potentially contentious meetings in their workplace. An employee would be forgiven for thinking that an audio recording of a meeting would prove irrefutable evidence of what was said should any dispute arise about the discussion in question. But can this evidence actually be relied upon during a Tribunal hearing?

In the case of Vaughan v London Borough of Lewisham Ms Vaughan brought various claims against her employer, including one for discrimination. At a preliminary hearing one of the questions to be determined was whether Ms Vaughan should be entitled to rely (at the final hearing) on recordings that she had made covertly of interactions between herself, colleagues and managers which she claimed showed that official notes made by her former employer were inaccurate or wrong.

The Employment Judge refused Ms Vaughan’s permission to rely on these recordings because: 1) Ms Vaughan refused to get the recordings transcribed unless certain unacceptable conditions were met; 2) Ms Vaughan could not be specific about the content of the recordings and therefore the Judge could not be satisfied that the recordings were of ‘probative value’; and 3) given the length of the recordings (nearly 40 hours’ worth!), admitting such evidence would be disproportionate. Undeterred Ms Vaughan appealed this decision.

On appeal, the Employment Appeals Tribunal ("EAT") confirmed that even though the practice of covert recordings is "very distasteful", such recordings are not automatically inadmissible simply because of the way in which they were obtained. Based on the evidence produced by Ms Vaughan, the EAT concluded that whilst the Tribunal had made the correct decision, it was not entirely happy with the Judge's reasoning. The Appeal Judge went on to say that parts of the covert recording might be potentially relevant and admissible, and that if Ms Vaughan lodged a more focused application, supported by transcripts of the recordings she sought to rely on, together with an explanation of why they are relevant, "she might get a different result". As expected, Ms Vaughan has submitted a new application which is likely to lead to her being able to rely on selective parts of the recordings at the Hearing.

So what should employers do in light of this decision? Our advice it to think carefully about introducing a policy on recording meetings; if you are not happy to have a meeting recorded, then make the employee aware of this at the outset of the meeting. In addition, if the meeting is formal, and discussions are likely to be relied on or referred to by either party at a later date, make sure the meeting is accurately minuted, and if you can, get the parties to sign the notes at the end of the meeting to indicate that they are a true reflection of what was discussed. If you discover that covert recordings have been made, and are to be relied on, then in the first instance ask them to be transcribed. If you are not satisfied with the accuracy of the transcription, then consider getting the recording professionally transcribed by an independent party. Above all, be mindful that what you say in meetings, and indeed in the wider workplace, might be being covertly recorded, and could, in some circumstances, end up being played out loud in a Tribunal!

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.