Covert recordings being used in Employment Tribunal claims have become quite a concern among many employers. While the chances of it being treated as evidence are slim, the grey area it falls in makes it a bit of a wild card.
There can be a multitude of reasons why an employee may choose to record a conversation between them and their employer. Some of the reasons may include recording keeping, to prove something inappropriate is being said or just as evidence in case it needs to be used. However, it is recognised that all parties in the workplace have an implied term of trust and confidence within their employment contract. Recording a workplace conversation can often be seen as a breach of said term.
But in an ever-growing world of misinterpreted words, what can HR in a workplace do to save employers from potential harm? Let’s find out!
Current Scenario Regarding Audio Recordings
There was a time when audio recordings were not admissible at all. But now, in the current climate, it seems the ET is willing to take it into consideration on a case-to-case basis. The most important thing that the ET considers is relevance. For example, in one case (Vaughan vs London Borough of Lewisham), the ET did permit the admission of audio recordings because the Claimant possessed 39 hours of recordings. In this case, the ET said it will only be admitted if there was a transcript and the relevance was clear.
Another important factor to consider is the purpose of the recording. In this case, it will be important to prove that the recording was not made solely to trap the employer. For example, in Phoenix House Ltd v Stockman, the ET found that since the Claimant had no intention to trap the employer whilst recording, the audio is admissible.
As it is evident from these two cases, there is a lot of room for speculation. Therefore, it is important for employers to think ahead, so a situation regarding audio recordings does not occur; or, at the very least, be prepared if it does occur.
Five Things to Keep in Mind – HR Tips to Deal with Audio Recordings
- Creating a Transparent Environment
To begin with, creating an environment where employees can openly discuss their issues with employers or HR is crucial. As mentioned, there is an implied term of trust and confidence and making the office a safe space for employees would be a great start.
A recording does not always have to be taken for malicious reasons. Hence, it is important to let the employees know that should they feel the need to record meetings and private conversations, they should let the employers know. This way both parties can deal with the matter together, lowering the chances of it being an issue later.
- HR Training
Having properly trained staff is also an important matter. This is not only to reduce the chances of covert recordings in the workplace but to be better prepared in case the situation arises. The first thing that needs to be done is to inform HR of the possibility that ET could include recordings as evidence. After that, have them talk about it with every employee, new or old, and communicate the company’s policy on recordings.
For example, if the company does not allow recordings of any kind, they will have to make it known. If it’s only allowed with consent, then failing to obtain consent will be considered misconduct. However, it is also important for the employees to know that their grievances will be handled sensitively so they would not have to resort to covert recordings.
- Confidentiality Clauses
Another, albeit aggressive, way of ensuring conversations are not recorded in the workplace is by adding a confidentiality clause in every contract. This will have to go both ways wherein neither the employee nor the employer is permitted to record unless it is consensual and necessary.
One more thing to remember here is that recordings are not always taken with the intention of using them as evidence. Hence, if employees feel the need to have a record of meetings or conversations had in an official capacity, then it is the HRs responsibility to ensure that there is an organised record of all conversations. In such cases, permission would have to be taken from all parties involved and the original recording will be with the HR department.
- Enforcing Appropriate Policies
Covert recordings can be considered gross misconduct, and in such cases dealing with it properly is crucial so the matter does not escalate. Make sure there are disciplinary and grievance policies in place to deal with aggrieved employees. Having a fair investigation is outlined by ACAS and a failure to follow it can be a lot more detrimental to the employer.
In the investigation, the employee must be given a fair chance to present their case and a fair chance to appeal. If the decision taken is against the employee, then the judgement must be fully justified and in writing. It will also be useful to have a record of everything that happened during the process.
- Offering Office Tech for Recordings
Another way of ensuring all recordings are taken openly and with permission is by offering company tech to record. Alternatively, having one person dedicated to creating accurate notes of all meetings is also a good way to keep a record. This can later be shared among employees confidentially.
If you find yourself dealing with covert recordings, the best way forward would be to speak to an employment law specialist.