Covert Recording

[katecross]

My employer has taken disciplinary proccedings against me which have taken place at company headquarters. HR haven't been present in the room whilst meetings have taken place. I know that covert recording has taken place due to me being tipped off by a senior employee.

Is this lawful and how would acas view this.

[Conniff]

"Any recordings retained must be relevant to your business and all reasonable efforts must be made to inform the parties that the conversation is or was recorded, says Karen Holden, Senior Partner at A City Law Firm

 

Employers

An employer should also be particularly wary of employees recording disciplinary or grievance hearings without their knowledge. The Employment Tribunal has previously in certain circumstances permitted these recordings, such as where the Employer is a public body. Employers should take preventative measures by amending Employment Contracts to explicitly exclude employees from recording hearings and ensure the decision making body retains its confidential notes of the discussions, but which are not disclosed unless matters proceed to a hearing. An Employment Tribunal would not want to hinder open discussion by the decision maker for fear of being recorded, but it has happened.

 

Producing evidence in court

Can these recordings be used in court to prove critical facts about a claim or defence even though they may have been obtained without consent or in line with the rules?

 

A tricky question. Again, on fundamental principles of law the claimant should not come to court with‘dirty hands’ and judges commonly believe a cheat should never prosper. The RIPA also prohibits the product of unlawful interceptions to be admissible in court. However, in civil cases some judges take a pragmatic approach that if the information is already disclosed and it is highly relevant, then it will be admitted – but then you are stuck with it for better or worse.

 

So where it is relevant and helpful it can be admitted and used to prove your case, but once the party is aware of it’s existence it must be disclosed and this may raise other issues all together. There is also risk that although you may obtain judgement in your favour, the unlawful means of obtaining this evidence, could be reflected in the remedy your receive for example perhaps less damages.

Be warned that if the data has been obtained illegally or unfairly then a party can address this by alternative means outside of the proceedings. It can issue a claim for breach of the Data Protection Act or under the above legislation claim damages for any losses suffered as a result of the recording. The Employment Appeals Tribunal has also indicated that it would exercise its Part 32 powers to override statute and admit evidence if a fair trial was at stake – so even if precautions were taken by employers to prevent recordings, for issues such as discrimination claims it may still be permitted?

 

There is no clear answer in this area of law, but the basic principles of obtaining consent for recordings is one that everyone should follow the guidance and if you haven’t and want to rely on it, yes you probably can, but be aware of the risks involved."

 

http://www.newbusiness.co.uk/articles/legal-advice/the-legal-ramifications-recording-conversations

 

This is not a legal definition but a lawyers interpretation and summation of the law.

[millitant]

i regard any recordings, either by the employee or employer without the agreement of both parties to be a total breach of trust

[Conniff]

If you don't trust who you are being examined by then I would always advocate covert recording, it is not illegal.

[millitant]

as long as minutes are being taken and both sides agree with the transcript then i see no reason to do a covert recording

 

as long as you have a rep or independent person in with the meeting as well

[Conniff]

If everything is done by the board as it should be and minutes are taken and a copy given to all parties then there would be no requirement for any further records to be kept.

 

If you are denied any of your rights, then all means are fair means to make things equal.

[madari]

Refer to[google] case law `Aziz v Trinity Taxis 1988` court of appeal.........from an employers point of view.

[becky2585]

Actually, militant has a point.

 

Covert recording might not in itself be unlawful - however it does give rise to data protection issues, plus it is indeed a breach of trust and confidence to covertly record a meeting without the employee's knowledge. If there was a series of breaches of confidence, this could be enough to give the employee the right to resign and claim constructive dismissal.

[millitant]

i totally agree on the above

[transient]

Nobody picking up on the fact HR were not present also?

[katecross]

What is the thinking behind HR not being present? Is it that they're listening in another room so as not to be drawn into discussions?

[millitant]

HR do not themself have to be in a disciplinary meeting, all thats needed are 2 managers, one to take minutes and a work place representative if requested

 

if it is proven beyond doubt the meeting room is being kept under survaliance then that would be grounds to resign and claim constructive dismissal

 

but you would need hard facts on this and you are treading on dangerous ground

[katecross]

Not enough evidence. Thanks!

Edited May 30, 2012 by katecross

[stu007]

Hi

 

Ref SAR this info from Information Commissioners website may be useful:

 

http://www.ico.gov.uk/for_organisations/data_protection/the_guide/principle_6/access_to_personal_data.aspx

[Bang!]

Speaking hypothetically, if covert recording was not permitted or accepted as evidence, and a case went the other way when a recording that would have prevented that result was not accepted; then its fairly likely what witnesses said in court did not match up with what they said on tape/representation.

 

The tape would definitely be permitted as evidence in an associated perjury trial.

 

Lastly, while an employer/business would require IC registration, and have to list voice tapes on that registration, an individual would not.

 

Covert non police taping was accepted as evidence in

 

http://en.wikipedia.org/wiki/HM_Advocate_v._Sheridan_and_Sheridan

 

So any civil action claiming a tape was not acceptable, would be in the unusual situation of having the evidence it declined to accept, being the reason for an appeal.

 

From this I would suspect cover taping must be permitted as evidence in all courts, as otherwise a lot of court time could be wasted.