The implications of covert recording in the workplace 

Covert recordings of meetings and discussions in the workplace have become increasingly common.

This is no doubt that a technology such as voice recording functionality on mobile phones and increased remote working has made covert recording easier. But is it legal? And can recordings made by employees be used as evidence?

What is covert recording?

Covert recording is when a recording takes place in secret, or without being openly acknowledged, or agreed upon by all parties. For example, an employee records a meeting on their mobile phone which is under the desk and not in plain sight.

Employers and employees may have a good reason for recording meetings or conversations. A popular reason for covert recording is when an employee believes they are being discriminated against or unfairly treated, and wants to obtain proof to back them up at either a meeting with HR or even at an Employment Tribunal.

Is covert recording legal?

There isn’t a simple answer to this question as it depends on the circumstances of the recording. In most cases, covert recording will be considered as misconduct, unless the purpose of the recording is for pressing issues such as criminal activity or misconduct. Under Data Protection laws, you should only take covert recordings if the purpose is to prevent or detect criminal activity or malpractice in the workplace.

Even in these cases, the court will still consider whether the covert recording was necessary and whether the information could have been collected in a different way.

When an employee secretly records an internal meeting with their employer, generally that recording may be accepted if it is relevant to the case during an Employment Tribunal.

The general rule is that the recording of a meeting where all parties are present may be admissible in court if relevance can be shown. However, any recording of private discussions of the employer’s panel may not be admissible unless there is a very good reason.

The Employment Tribunal’s view on covert recording

Rule 27 of Employment Tribunal Rules of Procedure states that the tribunal may submit any evidence that it considers relevant to the case, regardless of whether it would be admissible in a court of law. This broad rule gives the tribunal discretion, i.e. the choice, to admit covert recordings as evidence if they are considered relevant to the case.

Covert recordings by employees: is it a breach of trust?

While employers may feel that covertly recording a meeting or conversation is a breach of the implied term of trust and confidence (the employer must not conduct itself in a manner that is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee), the Employment Appeal Tribunal (EAT) decided otherwise in the case of Phoenix House Ltd v Stockman 2019.

In this case, Mrs Stockman complained of unfair treatment by her employer, Phoenix House. She covertly recorded a meeting with the head of HR which was only disclosed during her successful unfair dismissal claim. Her employer appealed against Mrs Stockman’s compensation award, arguing that making the covert recording was misconduct and it breached the implied term of trust and confidence.

The appeal was dismissed and the EAT stated that the employee may have recorded the meeting to keep a record or protect her from any risk of being misrepresented when faced with an accusation, or to enable her to seek advice from a union or elsewhere.

Covert recordings do not necessarily amount to a breach of confidence or trust although it can be argued to do so. Employment tribunals consider all surrounding circumstances in a claim, including:

• The employee’s reasons for making the recording
• The employee’s ‘blameworthiness’: has the employee been specifically told not to make a recording and then lied about it, or did they record it out of fear?)
• The subject matter of the recording: was it confidential or something that would have been shared anyway?
• Evidence of the employer’s attitude towards such conduct

When covert recordings cannot be used as evidence

Covert recordings do not always provide the evidence or ‘back up’ that employees hope they will…

In Williamson v Chief Constable of the Greater Manchester Police and another, the EAT ruled that the employee’s secret recording of the panel’s discussions at his capability hearing which took place while he was out of the room was not admissible as evidence in his tribunal claim. It stated that there was ample other evidence to support his claim and there was nothing in the recording that directly supported his discrimination claim.

In Vaughan v London Borough of Lewisham and Others, the EAT supported a tribunal’s decision to refuse an employee’s request to rely on 39 hours of secret recordings of meetings and discussions with her employer and colleagues.

It took into account the fact that the employee had not disclosed the recordings to her employer and was only willing to explain their relevance in general terms. The tribunal had therefore been unable to properly assess the relevance of the evidence when considering her application. However, the EAT made it clear that if a transcript and clear explanation of relevance had been provided, the decision may well have been different.

The EAT was critical of the tribunal’s view that a precondition of admitting covert recordings would be for the employee to pay for them to be independently transcribed. It considered this an unnecessary expense and that in most cases, any discrepancies regarding transcripts could be cleared up by the employer listening to the relevant part of the recording itself.

The importance of disclosing recordings and transcripts

As Vaughan v London Borough of Lewisham and Others demonstrates, if an employee wishes to rely on covert evidence, they should disclose both the recordings and a transcript to their employer at an early stage in proceedings. When this is appropriate depends, so seeking legal advice is key.

If the employer objects to the admissibility of the evidence, the employee should make an early application to the tribunal, explaining how and why the recording is relevant to the case, and provide a copy of the transcript.

Advice on covert recordings for employers

Updating policies

Employers should consider specifying in their grievance and disciplinary procedures that employees are explicitly forbidden from covertly recording meetings or discussions with colleagues without their knowledge or consent.

The policy should clearly explain what could lead to disciplinary proceedings. It is helpful to include examples and outline what action may be taken as a consequence.

This will undoubtedly assist with establishing clear ground rules for the conduct of tribunal hearings.

Get in touch with our employment law solicitors

If you’re an employer who needs advice on updating workplace policies, or for any other employment law-related matter, we can help. Call our employment lawyers on 0117 325 2929 or fill out our online enquiry form.