The bitter taste of covert recordings

Every HR advisor has been there, or will be there at some point in the future: you have spent hours in a disciplinary meeting with an employee, diligently taking notes of what was said; you then spend several more hours typing them up before sending them to the employee.

The employee then brings a Tribunal claim and your notes of the meetings are all prepared in readiness for the Tribunal to read but as if from nowhere, the employee announces that he has, in fact, been recording all of the meetings without telling anyone and, also, has covertly been recording conversations with his colleagues.

Surely the Tribunal will not listen to evidence which has been gained in such a dishonest and tasteless way?

Unfortunately, the Tribunal can consider the evidence and the Employment Appeal Tribunal (EAT) in the recent case of Vaughan v London Borough of Lewisham has supported this position. 

The likelihood is that the Tribunal will be loath to sit and listen to the recordings and, in the event that the notes prepared accurately reflect what was said in the meeting, the Tribunal will be none to pleased with the employee for having wasted the Tribunal's time.

However, the employee can, if they wish, have the recordings typed up and the Tribunal will normally allow them to be included in the Tribunal bundle.

Our view

Sometimes, during meetings, things are said which you would prefer had remained unsaid; however, to avoid any embarrassment arising from the meeting notes not reflecting a transcript made from the recording of the meeting, it is very important to ensure that, whilst not verbatim, the notes of any meeting accurately reflect what was discussed.