Posted on Dec 18, 2015 in Employment by Amy Jones
Is it good practice to record internal disciplinary or grievance hearings and what happens if an employee covertly records a hearing.
At our recent interactive grievance session on 19 November, one of the queries that arose was whether it was good practice to record internal disciplinary or grievance hearings and this sparked discussion about what happens if an employee covertly records a hearing.
Should an employer or employee record a hearing?
Some employers have indicated to us that they like to record hearings as they consider it reduces time spent producing a minute of the hearing. There is also the argument that it means that there can be no dubiety about what was said during the hearing. However, whilst it might be tempting, our view is that employers should not record hearings.
In our experience when a transcript of a recorded hearing is read back at Tribunal, or even during an appeal, it frequently does not come across well as the context is lost. Further the transcript can run to dozens (and sometimes hundreds!) of pages which increases the time spent in Tribunal and, therefore, also the cost of the hearing. It can also have a detrimental impact on a witness's ability to explain what went on at the meeting and what was in their mind..
Our advice is that employers should produce a comprehensive minute of internal hearings (and formal meetings, e.g. investigation meetings) and have it signed by the employee to confirm they agree it is a true reflection of what was discussed. If the employee has any comments on the minute or disputes the content, their comments can be appended to the back of the minute to record their position. A minute does not require to be verbatim, it should simply be an accurate reflection of what was discussed.
What happens if an employee secretly records a hearing?
With recording devices being included as standard on most smart phones, covert recording of hearings is becoming more of an issue.
Case law suggests that employees who covertly record meetings and, in particular, disciplinary hearings, will only be able to admit, as evidence, recordings of the parts of the hearing where they were present. If the recording covers part of a disciplinary hearing where the employee is not present (for example, where a disciplinary panel has requested some time to deliberate) then that part of the recording is not admissible. However, a recent case has cast doubt on that and indicated that if comments made during private discussions fell outside the area of legitimate consideration for the disciplinary panel, or revealed relevant matters, such as discrimination, that part of the recording will also be admissible.
Employers should therefore be alive to this potential issue and take necessary steps to prevent it happening, such as:
At the outset of meeting and hearings, employers should explain that recording of the meeting is prohibited and that a minute will be produced which the employee will get an opportunity to comment on. The employee should be asked to confirm that they understand and will not record the meeting. Employers may also want to expressly prohibit employees from recording hearings in their disciplinary and grievance polices.
These steps will undoubtedly assist with establishing clear "ground rules" for the conduct of hearings. However, while these steps may mean that an employee who covertly records a meeting might be guilty of misconduct (for which they can be separately disciplined), it does not necessarily mean that the recording itself is inadmissible in evidence. Accordingly, managers and HR representatives should always be alive to the risk of meetings being recorded.
When deliberating, the manager/panel should leave the room and hold their discussions in a separate room, rather than asking the employee to leave the room. This minimises the risk of the employee departing but leaving a recording device in the room which picks up all of the confidential discussions that take place regarding the potential outcome of the meeting.
It may also be wise to ask everyone attending the meeting to leave their coats and bags in a secure location rather than bringing them into the room to reduce opportunities to conceal a recording device.
If you would like more information on dealing with emploee issues please contact Amy Jones or a member of the Employment Law team on 01382 229111