Covert Recording Hits Employees in the Pocket

George Heron

George Heron

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Phone 01952 566918

15 September 2016

Zia and others v Brighton University Hospitals NHS Foundation Trust 2016

By virtue of their mobile phone, most employees tend to have a recording device on their person. This, somewhat inevitably, has led to an increase in the number of covertly recorded disciplinary hearings. Are these recordings admissible in tribunal proceedings?

The answer, generally speaking, is ‘yes’. Whilst there are no specific tribunal rules on this, tribunals must carry out a balancing exercise in relation to whether the need to act in the public interest outweighs the confidential nature of otherwise private discussions. Case law has shown that tribunals will tend to deem evidence of this nature admissible – particularly where there is doubt over the facts.

However, a recent case should act as a warning to employees about how to conduct themselves. In this case, the employer was facing claims from four employees for race discrimination. During the case, a recording was sent to the Chief Executive of the employer and their lawyers. This recording was of discussions between the employer and their legal team, and took place at the conclusion of a without prejudice meeting with the claimants.

The tribunal found that, by sending this recording to the employer, “the claimants in this case violated the principle of legal professional privilege” and had done so in order to put pressure on the employer. Finding that a fair hearing was no longer possible, the case was dismissed and the four employees ordered to pay over £17,000 each in costs.

This acts as a timely reminder that employees do not have carte blanche to covertly record anything they choose. Having said that, this is a fairly unusual case and most situations will not be covered by the same principle of legal privilege. It is therefore essential that, in any proceedings involving your employees, you act in a fair manner that is in accordance with the ACAS code. Indeed, where an employee is particularly awkward and argumentative, we even advise our clients to record the meeting themselves and to then issue a copy to the employee – that way they cannot dispute what was said!

At Alpha, we have a vast experience in providing bespoke, practical advice on HR and employment law issues. This includes providing specific advice on how to conduct a disciplinary hearing in a fair and compliant manner. We are proud of our commercial outlook and do not sit on the fence. If you would like to have Alpha on your side, please feel free to contact us.

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