Audio documents used in disciplinary proceedings Scotland solicitor

What can you do if one of your employees tape recordings a meeting or disciplinary without asking or alerting you first?

Employers are frequently questioned if an employee may record meetings or hearings due to the proliferation of technological tools that make audio recording simple and accessible. In other situations, workers might decide to record the meeting without seeking permission, producing a recording that the employer learns about much later, perhaps when the worker files a claim with an employment tribunal.

Unless there is a legal justification for their rejection, such as public policy or privilege, covert recordings of conversations at work are probably admissible. The general guideline that the Tribunals will follow is whether or not the recordings are relevant to the case when deciding whether to permit a claimant to rely on their secret meeting recordings. If so, the claimant will often be permitted to participate in the proceedings as long as they fulfil their standard disclosure obligations, which include giving the respondent a copy of the documents ahead of time.

Whether the employee recorded with the consent of every person there or just some of them, whether the employer’s policy forbade such recordings, or whether the employee was informed they couldn’t record in the first place but did so won’t matter.

The Tribunal will also take into account the reason for the employee’s clandestine recording. In 2020’s Phoenix House Ltd v. Stockman, the Employer only learnt of Stockman’s secret recording after she filed her claim for unjust dismissal. They argued this indicated they would have terminated her for egregious misconduct if they had known about her recording.

The original employee disagreed, claiming that her recording did not violate the job contract’s implicit duty of trust and confidence. The Tribunal concluded that Stockman was rattled during the discussion and did not record to trap someone. Despite Stockman’s successful claim, the Tribunal reduced the basic and compensatory award by 10% due to the secret recording. The decision was challenged, and the Employment Appeal Tribunal agreed. It was appropriate to enquire as to why the employee had taped the meeting—that is, what the objective of the recording was—which the ET had done.

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