We’ve all got them, smart phones, tablets even apple watches … all of which are small and can be hidden in pockets and bags. This brings a whole new level of considerations for employers as these portable devices allow employees to secretly record meetings or conversations in the workplace, and as you can imagine potentially use these recordings in hearings and tribunals as evidence.

An off the cuff comment during a disciplinary hearing or at an adjournment, may be your downfall, for example dismissing someone on the grounds of gross misconduct for theft, but during the adjournment, a comment is made about the employee’s high level of sickness.

Unbeknown to you the employee has recorded this and uses it to bring a claim of unfair dismissal against the company on the grounds that they were actually dismissed due to high levels of sickness.

The fact that the evidence was gathered without your knowledge does not mean that it will not be allowed. If the Employment Tribunal think that the evidence is relevant, then it will be admitted provided that the employer is given the evidence before the hearing. They won’t necessarily limit it to what was said at the hearing, but may allow the secret recordings of private deliberations of the disciplinary panel members during adjournments, particularly if the recordings reveal evidence of discrimination.

So how do we manage this as managers/employers?

Quite easily if you are heavily regulated, for example if you work in Childcare or financial services, mobile phones are just not permitted in the work place, but for those not regulated, and as mobile devices are part of our working lives and needed operationally, it’s a little more difficult to manage particularly in a disciplinary/capability situation.

We suggest the following:

• Ensure your disciplinary policy clearly states the company’s position on using recording devices at hearings.
• Reiterate this at the outset of the meeting, make it clear to all parties that recording without consent is not permitted.
• Ask all parties to switch off mobile phones or any other portable devices.
• During breaks, ask parties (including any representatives) to remove their personal belongings, bags and coats from the room. This reduces the risk of recording devices being left in the room when discussions are taking place.

However, it may be beneficial to you to record the proceeding, and if you do decide to:

• Make this clear to all parties and provide typed transcripts after the meeting
• Keep the recordings in case they are needed in the future to check legitimacy.
• Again, ensure you have a policy statement that reflects this.

However, HRall’s advice to any employer would be to always assume that you are being recorded and that what you say will be admissible in an Employment Tribunal.

If in doubt, give us a shout!