Recording covertly

[MsDaisy]

Hi All,

I would like advise on a situation where someone has recorded a meeting between them, their manager and HR without consent.
The recording was made by the employee for their records as there had been disputes over previous meeting minutes the employee had produced, so the employee wanted confidence their account was correct. The recordings have not been published or shown to anyone else.
During the meeting the employee briefly left the room although it was well understood she was coming back.
After the meeting, when compiling minutes, the employee overheard what was discussed when she was out of the room and it proves notable misconduct, which would prove valuable in an upcoming hearing.

It is my understanding that you can record meetings covertly, provided the recordings are not shared with anyone else without permission or a legal ruling.
However, what about the case when someone (i.e. the person recording) has left the room? Is the meeting still in effect as no adjournment has been called and the other parties are still in the room?

Any advice appreciated.

 

[woodss]

I was of the understanding that no recordings were permissable unless all parties had been informed that the recording was taking place and had agreed to it.

You're not allowed to record a phonecall without informing the recipient of the call that it is being recorded either.

Could be wrong though - interesting thread.

 

[STDFR33]

http://ellisjones.co.uk/blog/articl...ings-with-your-employer-without-their-consent

 

[Root 66 Woodshop]

Given the increased number of employee’s using mobile phones which have a voice recording function it is not surprising that many employers are concerned about employees covertly recording grievance, disciplinary and redundancy consultation meetings. The fact that they may be covertly recorded annoys employers as they consider it to be underhand and a breach of privacy.

This issue was recently considered by the Employment Appeal Tribunal (EAT). In Vaughan -v- The London Borough Council of Lewisham (2013)the EAT ruled that Ms Vaughan could not lodge transcripts of over 39 hours’ worth of covert recordings. However it stated that in principle it would have allowed Ms Vaughan to submit secret recordings and transcripts in support of her claims, if such evidence was in “the interests of justice”.

Factual Background
Ms Vaughan raised a number of claims against the Council, including disability discrimination, victimisation and harassment after she was dismissed following an irreparable breakdown in relations between the parties. During the course of the proceedings Ms Vaughan sought to submit over 39 hours of secret recordings which showed that the Council had lied in its formal pleadings and had falsified minutes of disciplinary hearings. Her application to lodge the recordings was rejected by the Employment Tribunal and she appealed that decision to the EAT.

The Legal Position
The use of covert recording within the workplace raises a number of interesting points, including under the Data Protection Act, however when considering whether such recordings are admissible in evidence, an Employment Tribunal will normally only consider how relevant that evidence is to the issues to be determined by the Tribunal. The Tribunal is not normally concerned by the manner in which the evidence was gathered. This principle applies to both recordings taken by the employer and by the employee.

There is EAT authority which states that if an employee submits a transcript of a covert recording of a disciplinary meeting, the part of the recording that relates to the time that the employee was present in the meeting is admissible. However, the part of the transcript that relates to a time when the employee was out of the room, and therefore the employer had a reasonable assumption of confidentiality, is not admissible.

The Decision
Applying the probative value test the EAT indicated that the recordings, whilst taken in a “discreditable” and “distasteful” manner, would have been admissible if Ms Vaughan could demonstrate why they were relevant to the circumstances of her case.

However, Ms Vaughan did not provide enough detail about what the recordings related to or how they supported her case and failed to provide transcripts to accompany them. Accordingly, the EAT declined to admit the 39 hours’ worth of material as evidence and indicated that Ms Vaughan needed to make a more focused and selective application.

Case Comment
This case is a useful reminder to employers that they should be careful about what is said to employees during meetings and remember that the employee may be recording it. In order to mitigate the effect of covert recordings, employers should ensure that they follow good practice and a fair procedure when conducting grievance and disciplinary hearings. Good practice would include taking a detailed note of what is discussed and being careful not to say anything that you would not want an Employment Tribunal to subsequently hear.

http://www.lindsays.co.uk/news-and-features/news/item/can-covert-recordings-be-used-as-evidence/

http://www.bwbllp.com/file/covertrecs-emp-summer13-pdf

http://www.acas.org.uk/index.aspx?articleid=4310

http://www.shoosmiths.co.uk/client-...ings-be-relied-tribunal-proceedings-7864.aspx


'Distasteful' covert recordings may be admissible evidence

 

[Newchodge]

Personally I think all grievance/disciplinary meetings should be recorded. It is the only sure way of proving who said what. It is, however, usually the employer who produces the notes and the employee who feels they do not adequately reflect the meeting.

Generally a covert recording would be useable in a tribunal, especially if it genuinely demonstrated bad faith on the part of the party producing the notes.

 

[MsDaisy]

Thanks very much for the comments all.

I am comfortable that she can use the recordings if need be in court, I was more interested in if the conversation that had happened whilst she left the room would be admissible. She left to fetch paperwork from her desk, and it was known this would not take long - it wasn't the case that a deliberation period was called. The conversation in her absence shows misconduct.

As HR are supposed to represent the business and protect the employee rather than be a support resource purely for the manager, would the meeting still be considered to be in affect

 

[Newchodge]

The recording exists. The tribunal will draw its own conclusions.

HR are not supposed to do anything. In most oganisations the HR role is to support managers to achieve whatever the business wants them to achieve.

 

[Employment Law Clinic]

This is actually a much more complicated area of law than some of the articles linked to in the thread would infer – particularly in the circumstances described in this opening post. Yes, it’s perfectly legal to covertly record a disciplinary meeting you’re present at (or a telephone conversation you’re a party to – you don’t have to tell the other side that you’re recording the call, let alone get their permission), but to record something that you’re not a party to is a serious invasion of privacy.

After the meeting, when compiling minutes, the employee overheard what was discussed when she was out of the room and it proves notable misconduct, which would prove valuable in an upcoming hearing.

I am comfortable that she can use the recordings if need be in court, I was more interested in if the conversation that had happened whilst she left the room would be admissible. She left to fetch paperwork from her desk, and it was known this would not take long - it wasn't the case that a deliberation period was called. The conversation in her absence shows misconduct.

Ms Daisy, you mention that recording the conversation in their absence shows notable misconduct, but don’t explain your thinking for this – although I agree. It’s appropriate, too, that this wasn’t a deliberation time – the facts hadn’t been concluded, so not appropriate to deliberate on the case until those were completely available.


It’s suggested that the absence wouldn’t be for long, but no indication how short “briefly” was expected to be, or how long it was. The manager & HR officer could have been discussing entirely personal, private matters in that time:


“You know what we discussed at lunch, I’m going for it, I’m going to file for divorce”;

“Do you know that x is in a relationship with the boss?”


Whatever was or wasn’t discussed, it’s a private or privileged conversation, clearly, and it shouldn’t need the formality of someone saying “this hearing is briefly adjourned” to make that so; the employee had taken the decision to covertly record their hearing, but when they realised they had been careless and recorded more, rather than remove the device when they left the room, they should immediately have ceased listening to the recording, and handed over all copies for scrutiny.

Is the meeting still in effect as no adjournment has been called and the other parties are still in the room?

I’m not of the view at all that the meeting is still in effect, so there would be grounds to challenge the evidence at a tribunal.


But that’s really neither here or there – a tribunal would prefer to receive an agreed transcript of a recorded meeting, rather than have audio machines set up and then try to make out the comments; an agreed transcript should not include anything recorded while the employee was absent.


But what exactly is meant by

After the meeting, when compiling minutes, the employee overheard what was discussed when she was out of the room and it proves notable misconduct, which would prove valuable in an upcoming hearing

And

The conversation in her absence shows misconduct.

? What are you thinking is the misconduct?



Karl Limpert

 

[paulears]

I suspect that 39 hours of recordings and no transcript shows that the exercise was not carried out properly anyway. Covert recording - both audio and/or video is simply evidence. The person with it can use it to support their case, or to throw doubt on the case of the other side. So if somebody is facing a disciplinary for one reason, and the covert recording provides evidence that the stated reason is a smokescreen, and the real reason is something else, perhaps something that would not stand up to a tribunal. This kind of evidence could not be collected any other way. I would assume that this kind of evidence would be accepted by the tribunal, as it appears to fit the acceptability criteria. The case being used as an example simply seems to have hours worth of ordinary conversation and the evidence, if it is there, is confusing as there is so much. The person should have produced a word for word transcript that the tribunal could read, then review the relevant section - which appears to be what they suggested as a next step.

 

[Gecko001]

http://www.lindsays.co.uk/news-and-features/news/item/can-covert-recordings-be-used-as-evidence/

In the 5th paragraph in the above link is very clear about the issue:

"There is EAT authority which states that if an employee submits a transcript of a covert recording of a disciplinary meeting, the part of the recording that relates to the time that the employee was present in the meeting is admissible. However, the part of the transcript that relates to a time when the employee was out of the room, and therefore the employer had a reasonable assumption of confidentiality, is not admissible"

I think there is the OP's answer

 

[paulears]

I think the purpose of covertly produced recordings is often more than just evidence. It is information that can then be investigated separately. I'm thinking where the real factors are that another employee has been approached to see if they are willing to take the post that will soon be vacant. That person could then be a witness to an alternative "truth'.

 

[The Byre]

@Gecko001 seems to have provided the definitive answer and she also now knows what is really going on. All she has to to do is find other proof of this misconduct - if indeed it is misconduct!

 

[MsDaisy]

Hi. Sorry for slow delay.
The misconduct relates to something the employee is accused of doing (hence the meeting being held in the first place), but in the comments made when she was out of the room, her manager clearly confesses it was actually him that carried out the action (i.e. the misconduct). So very relevant to the case. Nothing private/off topic was spoken.
Finding other proof is going to be impossible, there is no CCTV etc to go by.

Thanks for everyone's comments and inputs

 

[Employment Law Clinic]

The misconduct relates to something the employee is accused of doing (hence the meeting being held in the first place), but in the comments made when she was out of the room, her manager clearly confesses it was actually him that carried out the action (i.e. the misconduct).

Whoa.


@MsDaisy, are you suggesting that mid-way through a disciplinary hearing, new evidence came to light that would entirely exonerate the employee being interviewed, yet the hearing proceeded after the adjournment, and went on to produce minutes too? Rather than just make it clear as soon as she returned that an adjournment was needed, and it was unlikely matters would progress further? And now you want to discipline the employee for recording the meeting?

(If so, I can understand why an employee might care to covertly record conversations!)

Contrary to many of my peers, I don’t object to tough management policies & procedures (including zero hours contracts, for the record), but there is a line to be drawn: if you know (or even have reasonable grounds to believe) someone is not responsible for an alleged disciplinary offence, it would be entirely unreasonable to continue proceedings against them at all, let alone not even having the courtesy to tell them that you now realise that they most likely haven’t behaved inappropriately, and then try to discipline them for protecting themselves against such an unscrupulous employer.


You can only find whatever proof actually exists & can be reasonably found, and if none, act on suspicion or balance of probability – or even discipline a whole pool of possible staff that may have been responsible. But not proceed if you have reasonable grounds to imply someone was not guilty!



Karl Limpert

 

[Newchodge]

Whoa.


@MsDaisy, are you suggesting that mid-way through a disciplinary hearing, new evidence came to light that would entirely exonerate the employee being interviewed, yet the hearing proceeded after the adjournment, and went on to produce minutes too? Rather than just make it clear as soon as she returned that an adjournment was needed, and it was unlikely matters would progress further? And now you want to discipline the employee for recording the meeting?

(If so, I can understand why an employee might care to covertly record conversations!)

Contrary to many of my peers, I don’t object to tough management policies & procedures (including zero hours contracts, for the record), but there is a line to be drawn: if you know (or even have reasonable grounds to believe) someone is not responsible for an alleged disciplinary offence, it would be entirely unreasonable to continue proceedings against them at all, let alone not even having the courtesy to tell them that you now realise that they most likely haven’t behaved inappropriately, and then try to discipline them for protecting themselves against such an unscrupulous employer.


You can only find whatever proof actually exists & can be reasonably found, and if none, act on suspicion or balance of probability – or even discipline a whole pool of possible staff that may have been responsible. But not proceed if you have reasonable grounds to imply someone was not guilty!



Karl Limpert

Karl, I assume @MsDaisy is the employee being disciplined.

 

[Employment Law Clinic]

Karl, I assume @MsDaisy is the employee being disciplined.

Thanks Cyndy, that makes a lot more sense. (I'm normally good at recognising those when they blatantly pretend to be the employer, but I concede I didn't here.)

For a ruthless employer that would behave as MsDaisy describes, my comments above would stand.

For MsDaisy, I would be dubious about

her manager clearly confesses it was actually him that carried out the action (i.e. the misconduct).

if this is a view taken by Ms Daisy, rather than an unambiguous "oh, are we discussing that, I done that" type of comment by the manager.


Karl Limpert

 

[MsDaisy]

I have been rumbled. I hope you understand that I was doing this in the hope of not having my issues tracked on a forum, rather than misleading you for any other reason, but I do apologise.

To be clear, I stood accused of carrying out a wrong-doing, when I left the room my manager admitted it was them who did it - which I obviously wasn't aware of at the time. It was only when hearing the recording back later that I found this out. However I am worried about presenting this evidence because of how it was obtained. There were no minutes produced for the meeting. I requested them but have been refused on the grounds that no formal minutes were taken.

 

[Gecko001]

I would take someone into your confidence and play the recording to them. Often an aggrieved person will only hear what they want to hear no matter how much they listen to something. One of the accusers could say something like "we have to be careful or we could get ourselves in trouble here" and the aggrieved person might see that as an admission of wrong-doing, but in fact they might mean something very mundane and innocent such as they have to tread carefully as they do not know the exact employment law on the matter.

 

[ethical PR]

@MsDaisy - I am not how much value there will be for you in 'taking someone into your confidence' unless that someone is an employment lawyer or a representative from a recognised trade union that you belong to.

Why not give the ACAS free helpline a call and explain the situation/consult an employment lawyer.

 

[Countrymun]

As someone has already stated, you are free to record any conversation in a meeting/by phone and you don't need to inform the other party. As long as one party to the conversation knows it is being recorded, that is legal.
A relative of mine is a journalist and likes to record phone conversations because they obviously provide more compelling evidence than notes of what was said.
However, in this case Miss Daisy left the room so she was no longer party to the conversation. That means she was illegally recording a private conversation between people who were not aware of the recording.
I can't imagine that a tribunal would allow such evidence to be heard. However, I guess that wouldn't prevent Miss Daisy from asking the other party whether they had admitted to anyone that they (other party) had actually committed the wrongdoing involved.