Disciplinary hearings and secret recordings
It is becoming more and more common for employees to use mobile devices to secretly record meetings with managers and even to leave the device recording during deliberations at disciplinary hearings. Smartphones and their recording apps are the reason for this.
Our advice to both parties is to have a note-taker present. Employers should get the employee to sign to confirm that the notes are accurate – since the employer’s notes are more likely to help its case and not the employee’s.
Thanks to recent Employment Appeal Tribunal decisions, generally the employee will be allowed to use their secretly-recorded evidence of a meeting at a later tribunal hearing.
Consequences of secret recordings at disciplinary hearings
In theory this shouldn’t pose a problem, since you will have acted above board in and around the meeting, however it can leave the employer with egg on your face if the recording shows that its notes contained significant mistakes or omissions.
But even worse, if the employee only confesses to the recording late in the employment tribunal process and it conflicts with anything your witnesses have remembered in good faith, it can wrongly casts doubt on the rest of their testimony before the tribunal.
And if managers voice opinions or ask questions which are ill-advised, a recording allows the employee to refer to these even if they helped to arrive at a legally sound decision in the end.
If a disciplinary hearing involves deliberations or taking HR advice, it is a good idea for the employer to make sure that the employee hasn’t left anything behind in the room or even to do this part of the process somewhere else.
On the bright side, secret recordings by staff can potentially help the employer as they may be a disciplinary offence and can show that the trust has gone from the relationship. Nevertheless, we recommend that where the trust and confidence has broken down, employees who distrust the employer’s note-taking and can’t find a suitable companion should probably make a recording.
But the reality is that for employers they are a worrying trend. The answer is to get your best note-taker to attend disciplinary hearing.
And the best note-taker isn’t necessarily the fastest typist, but someone who is has experience of reducing what they hear into shorter notes in real time.
Both sides should liaise with the other to try to produce a set of notes that is agreed, by merging the two. We find that this makes taking advice and pursuing employment tribunal claims a lot smoother.