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‘Distasteful’ recordings may be admitted as evidence in tribunal hearings

14 Aug 2014

Neil Dwyer, Partner and Head of Employment at Hay & Kilner warns employers that their employees may be recording conversations or accessing private communications and advises on how to manage the situation.

Premier League Chief Executive Richard Scudamore’s recent problems with “sexist and inappropriate language” in emails to friends demonstrated that in the digital age there are no closed doors.

Covert audio recordings are an increasingly common feature of workplace disputes. It is all too easy for employees to make discreet, high quality recordings of conversations with phones or devices and many employees consider “all is fair in love and war” and secretly record meetings with managers. However, context and nuance which may show a manager in a good light are often missing.

In a recent case, an employee’s secret recordings of her grievance and disciplinary meetings were not blocked by an employment tribunal, even though they included private comments made by her managers when she was out of the room. The employer tried to block use of the secret recording, but it was allowed because the judge said the discriminatory comments were not part of the decision makers’ legitimate deliberations in relation to the grievance and disciplinary hearings.

This case reaffirms the position that employers should always be alert to the possibility that an employee may be covertly recording conversations and meetings. Although employment judges have said they find covert recordings ‘distasteful’ and ‘discreditable’, employers should not assume that the way in which the recordings have been obtained will prevent them from being used as evidence.


Top five tips for employee meetings:

  • Focus on the facts – avoid making statements that suggest a pre-determined decision has been made and think twice about making any comments you would not be prepared to make in front of an employment tribunal judge
  • Set ground rules – make sure your disciplinary and grievance policies include an express ban on employees recording hearings
  • Ask employees to switch off their phones – at the start of any hearing and also ask them to declare that they are not making any recording (make sure this is noted). Any breach of this rule may be actionable separately.
  • Keep comprehensive and accurate notes or make your own recording – of any meeting or hearing and ask the employee to sign them to confirm agreement with the record of what has been said.

Consider taking minutes of private discussions these would not be disclosed to the employee and could be helpful in refuting any future allegations of discrimination.

For further information or advice, please contact Neil Dwyer.

Call: 0191 232 8345

Email: neil.dwyer@hay-kilner.co.uk