An issue causing increasing concern for HR practitioners is the practice of employees recording grievance and disciplinary meetings without the employer’s knowledge. While many employers prohibit such practices in their employee handbooks, it is almost impossible to prevent and detect any such recording and employers should be aware of the risk of employees making covert recordings as they may be admissible in an employment tribunal.
There is no general rule on the admissibility of covert recordings in tribunal proceedings in Ireland and it is a matter for a tribunal to decide on a case by case basis whether the recording can be relied upon. If the evidence is relevant and proportionate it may well be admitted by a tribunal.
The case law in the UK is somewhat more advanced and is likely to be of persuasive authority in this jurisdiction. In the leading case on the admissibility of covert recordings in tribunal proceedings – Chairman and Governors of Amwell View School v Dogherty (UKEAT/0243/06) – the UK Employment Appeals Tribunal (EAT) concluded that, while covert recordings were generally admissible, a recording of the private deliberations of the disciplinary panel was inadmissible on the grounds of public policy. However, the EAT commented that recordings of such deliberations might be admissible in some circumstances and gave an example of a case where the panel had given no reason for its disciplinary decision and the covert recording indicated that the decision had involved discrimination.
In another UK case – Punjab National Bank v Gosain UK EAT/0003/14 – an employee attended a number of grievance and disciplinary meetings which he recorded without the employer’s consent. The meetings were adjourned on a number of occasions but the employee continued to record the private conversations of the management team involved. The recording of the grievance hearing reportedly contained an instruction from the Bank’s managing director to dismiss the employee and the manager hearing the grievance stating that he was deliberately skipping the key issues raised by the employee in her grievance letter. The recording of the disciplinary hearing also reportedly suggested a sexual comment had been made about the employee during the adjournment. The EAT ruled that the recordings were admissible on the grounds that the comments made did not constitute part of the deliberations of the disciplinary panel.
To reduce the risk of a tribunal admitting a secret recording into evidence, employers should take the following steps:
Finally, by way of a word of warning, while the tribunals will generally allow an employee to submit a covert recording into evidence where it is of probative value, the same latitude will not necessarily be afforded to an employer and employers will generally be held to a higher standard. In the UK case of Scott Kilday v MGM International (2014), a company was ordered to pay a former employee £16,000 in compensation for constructive dismissal in circumstances where it placed a bug in an employee’s potted plant at his desk. Employers should remember that any recording of their employees must be fair, transparent and carried out for the legitimate interests of the employer.
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