Covert Recordings

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The Problem

For some employers, recording dialogue with employees is borne out of distrust of the employee.  For others it is borne out of logistical difficulties, for example not having a note taker available.  But what if a recording has been taken by an employee of internal conversations covertly (as was the case in Vaughan v London Borough of Lewisham and others)? No doubt the party who was ignorant of the recording would argue they may not have said what they said had they known that such recordings could be used as evidence? The claimant in this case applied to the tribunal asking to use the covert recordings she had gathered.

The Principles

Recordings can be (and occasionally are) used as evidence in tribunals.  In the above case the claimant wanted to rely on 39 hours of recordings that she had made claiming that the recordings would show the notes taken of the employer were inaccurate or wrong.  Her application for these recordings to be admissible as evidence was rejected by the tribunal.  This was also supported by the EAT although it did note that, although “very distasteful’, such recordings are not always inadmissible because of the way they were taken.

The Practice

It’s unusual to come across applications to use covert recordings in evidence.  But be aware, the EAT has indicated that in some cases such recordings may be admissible.  The EAT noted that if the claimant had made a more focused application, supported by transcripts of the recordings, then the result may well have been different.

In practice, the best way to avoid arguments around admissibility of evidence is to keep a clear and clean paper trail of meetings/conversations with employees and to allow the employee the opportunity to agree to meeting notes, and to amend those notes if they think they were inaccurate.  It is also advisable to ensure that what you say in everyday conversations is no different to what you say ‘on record’.

For more information, help or advice please contact Tim Davies on 0191 211 7927.