I Know What You Said Last Disciplinary Hearing…

Last month the Employment Appeal Tribunal confirmed that an employee’s covert recordings of her employer could be admissible as evidence in employment tribunal proceedings. In support of a discrimination claim, Ms Vaughan sought an employment tribunal’s permission to adduce in evidence 39 hours’ worth of covert recordings.  Initially the employment tribunal held that this evidence could not be relied upon given the clandestine nature in which Ms Vaughan had obtained these recordings.  The tribunal suggested that there was a real risk that these recordings could have been tampered with and were therefore unreliable. However, when the EAT considered the matter, it thought differently and held that it was not “implausible” that parts of this evidence would potentially be relevant and therefore admissible to the determination of Ms Vaughan’s claim.  Whilst the EAT considered the practice of covert recordings to be “very distasteful”, this did not mean that all covert recordings should be inadmissible. In my view, employers and HR professionals can learn the following from this recent decision:

1     Employers should prepare their own minutes of such meetings and provide these to employees as soon as possible after the meeting has concluded.

2.     Employers should ask employees to switch off their mobile phones or similar devices at the start of any formal hearing and have this request recorded in their own minutes.

3     Employers may also want to amend the terms of their handbooks so as to ban employees from making covert recordings.

Having said all of the above, it is also advisable for employers to exercise a degree of common sense when dealing with this type of issue.  Clearly employers should be wary of employees who turn up to formal meetings wearing over-sized trench coats and/or unusually-shaped head gear!

Simon Allison
Partner – Employment Law

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