DISCIPLINARY PROCEEDINGS - 30.08.2016

Covert recording costs employees £69,484

Secret tactics

These days it’s easy to covertly record conversations. Indeed, many employees do so when they are seeking to gather evidence against their employer. There are many reasons for this practice, the most common being that the employee is subject to disciplinary proceedings, raising a grievance or believes that they are being subject to some form of unlawful behaviour such as discrimination or harassment.

Common practice

For some time employees have been allowed to rely on covert recordings of public discussions, e.g. of a disciplinary hearing or open conversation between colleagues. In Punjab National Bank (International) Ltd and Others v Gosain2014 the Employment Appeal Tribunal (EAT) went further ( yr.16, iss.8, pg.4 , see The next step ). Gosain had left a recording device running when she stepped out of a grievance meeting. The EAT allowed her to use the private conversation which took place in her absence as evidence.

Balancing exercise

Contrary to popular belief, this ruling didn’t give employees the right to use all covert recordings - instead, the tribunal must carry out a balancing exercise. If its obligation to satisfy the public interest test outweighs the confidentiality of the private discussions, a convert recording must be admitted as evidence. In most cases the balance will tip in favour of the public interest test - therefore, you should always hold post-meeting discussions elsewhere just in case an employee has placed a covert recording device in the room.

Without prejudice

In the case of Zia and others v Brighton University Hospitals NHS Foundation Trust 2016 the four employees were barred from using a covert recording of a private discussion. So what happened here? Zia and his colleagues had accused the Trust of race discrimination. In an attempt to settle their claims the employees and their lawyers had an unsuccessful without prejudice meeting with the Trust and its lawyers. The parties ended up in tribunal.

Legal privilege

Whilst the tribunal hearing was ongoing, the Trust received an anonymous recording which started at the end of the without prejudice meeting, just before the claimants and their lawyers had left the room. It also captured the discussions which took place between the Trust and its lawyers which were legally privileged. The tribunal found that the recording had been sent to put the Trust under pressure to settle and there could no longer be a fair hearing. It held all of the claimants responsible for the recording and its disclosure and ordered them to jointly pay the Trust its legal costs of £69,484. Tip. This case shows that whilst employees may be allowed to use covert recordings in certain circumstances, the tribunal will frown on behaviour that is clearly an attempt to bully or coerce the other side into settlement. This can also lead to the employee having to pay the employer’s costs.

For the previous article on covert recordings, visit http://tipsandadvice-personnel.co.uk/download (PS 18.15.07).