Rachel Richardson, Director, considers the following problem and offers some practical advice:

I am an employer and recently held a disciplinary hearing with an employee, I suspect they were covertly recording the meeting on their phone. If this is correct and clearly they did this without our consent then presumably such evidence could not be relied on by the employee in later tribunal proceedings?

Under The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, Schedule 1 Rule 14(2), the Tribunal is not “bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings”. Therefore, whether a covert recording of a disciplinary hearing is admissible will turn on the facts of each particular situation. It follows that it cannot be presumed that the evidence you refer to could not be relied on by the employee in later tribunal proceedings.

Case law on the area does give guidance as to how an Employment Tribunal might assess the admissibility of such a recording. The general approach is that covert recordings of internal meetings such as disciplinary hearings, where both parties were present, can be admitted as evidence in employment tribunals. However, private panel deliberations where the employee is not present will not generally be admitted.

Nonetheless, there are exceptions to this. In the case of Punjab National Bank (International) Ltd & Ors v Gosain Ltd UKEAT/0003/14/SM, recordings of panel deliberations were deemed admissible because the content of the deliberations went beyond the scope of what legitimate considerations the panel should have been discussing – including inappropriate sexual comments about the employee. In this instance the Tribunal decided that there was no public policy reason for not admitting the recordings. In fact, where discriminatory comments are made, a Tribunal is more likely to consider it to be in the interests of public policy to include such recordings.

Therefore, in light of my above comments, my advice is to always ensure that you do not say anything in a meeting with an employee or about an employee, that you would not wish to be adduced at a tribunal. Ensure that any panel deliberations surrounding a disciplinary procedure remain solely within the scope of what legitimately needs to be considered in relation to the particular issue in question and you may wish to consider adjourning to another room to carry out your deliberations.

You could also include the covert recordings of internal hearings as misconduct under your disciplinary procedure, although note that including this in your disciplinary procedure will not necessarily mean a Tribunal will deem it inadmissible. At the beginning of every meeting with an employee you should ask them to confirm whether or not they are recording the hearing, you may also wish to ask an employee to hand in any technology that could be used for recording.

Rachel works exclusively in Employment Law and for further advice, she may be contacted on: 02890 553300 or by email at rachel.richardson@tughans.com

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.