Mon 19 Aug 2019

Should employers audio record disciplinary proceedings?

My colleague, Elise Turner, recently blogged about an unfair dismissal case where the employee, who was ultimately successful, relied on evidence before the tribunal that she had obtained by covertly recording a meeting with her employer.  

This was despite the fact that the Employment Appeal Tribunal (EAT) stated good practice would be for an employee to say if they intended to record a meeting, except for in the most pressing of circumstances.  As Elise pointed out in her blog, there is plenty of case law which shows that covert recordings of disciplinary meetings are admissible as evidence in tribunal hearings, even if the practice of making the recordings was, as previously suggested by the EAT, "distasteful".  Given the relative regularity with which covert recordings of disciplinary meetings takes place (usually on mobile telephones), is the answer not for employers just to get on with it and record the meeting themselves?

There are advantages to this approach - for example, there is no scope for a subsequent dispute as to the accuracy of those minutes.  Even where the accuracy of the written word is not disputed, there is perhaps less scope for inferring what might have been meant (rather than said) when there is a full recording, rather than a shorter written minute.  It also keeps control of the recording in the hands of the employer meaning that it would be switched off at the point that any deliberations take place.  Unlike recordings of meetings when the employee is in attendance, covert recordings of deliberations where the employee is not present are not usually admissible in evidence before an employment tribunal.  There are exceptions to this, for example where there is an allegation that a decision has been made on a discriminatory basis, but these are few and far between.

Control after the recording is taken is equally important - it is all too easy for a disgruntled employee to put audio files on to social media channels, something which an employer would not be aware of until it was too late, if a covert recording had been taken.  The same could, of course, be said of type written notes, but a recording, coming straight from the horse's mouth, undoubtedly has more (potentially negative) impact.  If the employer has "ownership" of the recording it can be made clear to the employee that unauthorised use of a copy of it would be considered gross misconduct. Some employers will also get the employee to sign a brief document acknowledging that the employer owns the recording as their intellectual property and restricting the employee's use of the recording.

There is also the wholly practical consideration of quality of sound.  A muffled recording taken by a mobile phone stuffed in a pocket or bag may just cause more arguments about what was actually said. 

Recording of disciplinary hearings will have the added benefit of demonstrating that the employer has nothing to hide, and that there is confidence in the process and in the managers conducting the hearing.  But that is perhaps also the most obvious problem with the idea of recording hearings.  Not necessarily that managers are not going to manage the meeting properly (although that is always a possibility) but rather the fact that they are being recorded may make them unduly concerned about getting things wrong.  Even the most competent of disciplinary chairs may be slightly put off stride by the thought of every word being recorded.  It will, at least until managers get used to it, add an extra layer of stress.  A nervous disciplinary chair is unlikely to be a good disciplinary chair.  And reminding the managers that they need to carefully consider what they say, as it could be used against the employer in a tribunal, is unlikely to make them feel any more comfortable.

One distinct benefit of minutes is that they tend to be more concise and focussed and, to that end, they are often more suitable for tribunal hearings rather than word for word recordings.  Although a recording would, in any event, be transcribed for a tribunal hearing, it potentially still results in the inclusion of additional material that is not directly relevant to the points in issue being scrutinised unnecessarily. There is also the additional cost and time of arranging for the full transcript and having this checked.

Overall, there is some merit in employers considering recording a hearing.  However, before taking the plunge I would ask you to consider a few questions.  Firstly, has your organisation encountered any problems when using minutes?  If so, how difficult has it been to resolve any problems that have arisen?  Have there been times when employees have made covert recordings?  If so, is it made clear, for example in your disciplinary policy, that recording is not permitted and will be considered misconduct.  These steps will minimise the risk of covert recording taking place. 

If you have answered these questions and are satisfied that your organisation isn't really at risk of problems with covert recordings then I would suggest you stick with minute taking - if it ain't broke why fix it?

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