Almost everybody in modern society has a mobile telephone; that sophisticated piece of technology that ensures we are always contactable. However, with the prevalence of smartphones, covert recordings are becoming common in the workplace as it becomes increasingly difficult to detect.
A main concern for an employer in such circumstances will likely be whether a covert recording can be used against them; particularly in respect of legal proceedings, in the event relations with an employee turn sour and an employment claim results. This issue has been considered in a number of cases, both in Northern Ireland and in Great Britain, and it has been held that tribunals have a wide discretion to determine whether evidence is admissible.
In the NI case of Richard Vance v Charles Hurst Ltd  NIIT/01501/10, where the Tribunal awarded Mr Vance £65,300 having determined that he was unfairly dismissed, the Tribunal placed particular emphasis on statements made towards the Claimant, which were collected by means of a covert recording made by the Claimant during a consultation meeting with Charles Hurst’s franchise manager. In the English case of Vaughan v London Borough of Lewisham & Ors  UKEAT/0534/12/SM the Employment Appeals Tribunal held that whilst secret recordings may be “very distasteful”, they are not inadmissible simply because the way that they were collected may be deemed to be discreditable.
However, the Tribunals have drawn a distinction between internal meetings, where the employee is present, and meetings where the participants or panel withdraw to consider their decision in private; in that Tribunals are typically more willing to permit the submission of recordings of the former. However, employers should be aware that where private deliberations contain evidence of discrimination or unlawful conduct, an employment tribunal still has discretion to permit the covert recording. This was the case in Punjab National Bank (International) Limited and others v Gosain  UKEAT/0003/14. The Claimant left a recording device in a room during breaks during her disciplinary and grievance hearings. Throughout these breaks, the managing director was instructed to dismiss her and the grievance hearing manager made a sexual remark about Ms Gosain. The tribunal decided that the relevant evidence should be balanced against the need to ensure the confidentiality of the employer’s private deliberations.
If a Claimant wishes to rely on a covert recording, it is likely that the tribunal will require the Claimant to prepare a transcript of the recording and make both this and the recording available to the employer and the tribunal before any application to submit same as evidence.
From a practical point of view, employers should ensure its employees are aware that covert recordings are not permitted in the workplace and doing so may attract a disciplinary penalty. Whilst this will not completely prevent the conduct, it should act as a deterrent. Management should also be made aware of the risk that they may be recorded without prior permission and encouraged to avoid ‘letting off steam’ during internal meetings; both when the employee is present and when he/she is not.
Employers should always seek legal advice as to the appropriate action in the event it becomes aware that a covert recording has been made by an employee.
Toni Fitzgerald-Gunn is a Solicitor in the employment department and can be contacted on 02890434015