As reported by Melanie Yates of DLA Piper in Personnel Today on 23 April, recent case law has expanded the discretion of tribunals with regards to the admissibility of covert recordings as evidence, confirming that even covert recordings of private discussions can be admissible.
This particular case refers to covert recordings made by an employee during disciplinary and grievance hearings (including comments made during breaks by decision makers when the employee herself was out of the room) and highlights the need for good practice to be followed at all times in such situations.
However, it also brings into question the extent to which employers may wish to consider prohibiting covert recordings in their policies and procedures.
As Yates reports, while such prohibitions will ultimately offer limited protection if the tribunal is of the opinion that the subject matter of a covert recording is admissible, the inclusion in an employer’s policies and procedures will serve as a useful deterrent to employees.
In addition, if an employer has issued clear ground rules on the conduct of hearings, including an express ban on any recordings, and has obtained the employee’s confirmation that he or she understands those rules (and a declaration that they are not making any recording), any breach of this “ground rule” may be actionable separately.
Agile HR Consulting is able to assist in the writing, review and/or update of disciplinary and grievance procedures.