Recording conversations or meetings is easy these days – mobile phones, music players and tablets all have the ability to record sound at the touch of a button. Trouble can arise when employees secretly record meetings or conversations and then seek to use this material as evidence in their Employment Tribunal claim. Likewise it is becoming increasingly common for employers to record meetings (usually with the consent of the employee).
In the recent case of Vaughan v London Borough of Lewisham (2013), Mrs Vaughan had recorded 39 hours of conversations with her managers and colleagues onto a dictaphone (with the files then transferred to her iPod). She sought to admit this as evidence in her Employment Tribunal case, saying it would prove the Council were lying, but the Employment Judge ruled she could not admit this evidence. In making this decision, the Employment Judge was mindful of costs given that Mrs Vaughan had not transcribed the recordings or highlighted the areas that she felt would prove that the Council were lying, as she had alleged.
Mrs Vaughan appealed against this decision to the Employment Appeal Tribunal (EAT). The EAT stressed that it is established in case law that secret recordings are not inadmissible simply because the way in which they were taken may be regarded as discreditable. However, in this particular case the EAT agreed with the Employment Judge about not admitting the evidence, but found that his reasoning was not quite correct. The EAT said that the Employment Judge had not been able to form any view on the relevance of the recordings because Mrs Vaughan had simply said they were relevant, but had refused to provide the recordings to the Council prior to her application to admit them, nor had they been fully transcribed.
The EAT referred generally to the practice of secret recordings as “very distasteful”, even though the EAT accepted that employees such as Mrs Vaughan will say that it is a necessary step in order to expose injustice. The EAT gave felt that Mrs Vaughan should have produced transcripts and provided these to the Council and Tribunal so it could be seen if there were any parts that were irrelevant (which is likely where there are 39 hours worth!). They also said Mrs Vaughan should have given the Council access to the recordings to assess the accuracy of the transcripts. The Council could have then used a third party to transcribe the recordings if there had been any dispute over accuracy. The ruling on her evidence may have been different if she had made a thorough application, citing particular parts of her recordings and highlighting why these were relevant to her case.
To avoid such issues, many employers are choosing to record meetings themselves and supply copies of the recordings to employees. There is no legal obligation to do so, but there is something to be said for this approach. However, this should only be done if the employee agrees to this and ideally their consent should be sought well in advance of the meeting. Employees may also ask to bring their own recording device as well, which should usually be allowed where the employer is making a recording.
Whether or not the decision is taken to record a meeting, it is always prudent to take detailed notes of a meeting and it can be helpful to have a person present at the meeting with the specific role of note-taking. This all forms part of the evidence trail! Employers should train managers dealing with meetings such as disciplinaries, grievances, etc so that they are always aware that everything that happens at such meetings can form part of the evidence in an Employment Tribunal claim.
We can help with advice about recording meetings, and can also provide training for managers on handling disciplinary and grievance issues. For advice on this or any other aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).