In the first part of this article, we examined the laws concerning the legality of covertly recording meetings with employers. In this second part, we will explore some of the advantages of making a covert recording despite the associated risks.
Although secretly recording a meeting with your employer may constitute misconduct, or even gross misconduct, tribunals are permitted to accept these recordings as evidence. Rule 27 of the Employment Tribunal Rules of Procedure states that the tribunal may submit any evidence it deems relevant to the case, irrespective of whether it would be admissible in a court of law. This broad rule grants the tribunal the discretion to admit covert recordings as evidence if they are considered relevant to the case.
Consequently, making a recording may be a means of piling pressure on your employer. For instance, if you are experiencing discrimination or harassment from a specific supervisor or manager, you could covertly record conversations between you as evidence. You could file a grievance and disclose the recordings at the grievance hearing. Your employer might retaliate by disciplining you, particularly if there is a clause in your contract or in your employer’s policy documents that prohibits covert recordings. However, since your employer risks having the recording disclosed at a tribunal, they may feel compelled not to discipline you. If they hold back from dismissing you and fail to resolve the issue to your satisfaction, you can submit a claim to a tribunal for discrimination, harassment, or both.
If the employer initiates a disciplinary case against you for misconduct, you can still pursue a claim while considering resigning and claiming constructive dismissal, provided you meet the criteria for claiming unfair dismissal. If the employer dismisses you for gross misconduct, you may still claim unfair dismissal if you meet the qualifying criteria, as well as submit a claim for discrimination. Even if the employment tribunal deems your dismissal fair under the nonsense of employment laws, you could still win your discrimination claim.
Similarly, if you covertly record a grievance or disciplinary hearing, it may be admissible at an employment tribunal. In Punjab National Bank (International) Limited and others v Gosain, it was ruled that secret recordings could be used in a tribunal claim. However, recording parts of a hearing while you are not present—such as leaving your phone running when asked to leave the room while the panel deliberates—would be highly unlikely to be permitted in an employment tribunal. While this may serve as a useful tool for gathering information, it carries a significant risk of dismissal.
Recording private conversations or hearings can be useful even it does carry with inherent risks. It is important to remember that the decision to admit covert recordings can only be made during a tribunal hearing. It may well be the case that the employer will settle before the case reaches tribunal, primarily due to the risk of the recording being disclosed and the potential reputational damage involved.
Just to cover ourselves, this article was not written by a lawyer but by a workplace activist and should be treated in that light.