Can my employees used audio recordings as evidence in the Employment Tribunal?

by Direct 2 Lawyers on March 11, 2013

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A point which arose in the recent Employment Appeal Tribunal case of Vaughan v London Borough Of Lewisham & Ors was that of the admissibility of audio-recorded evidence in the Employment Tribunal (particularly when it is proportionate to admit or reject the admitting of such evidence). We’ll therefore take a look at this in the following article, including an examination of:

  1. Can my employees make audio recordings of meetings?
  2. Am I allowed to discipline my employees if I find they’ve been recording workplace conversations or meetings?
  3. Are audio recordings admissible as evidence in the Employment Tribunal?
  4. What should I do if I’m made aware that there are audio recordings which are potentially relevant evidence in (threatened) proceedings?

Please note: it’s recommended that you obtain employment law advice from a specialist on the following issues

Can my employees make audio recordings of meetings?

The short answer to this question is “yes” – the ability to make audio recordings of workplace conversations and meetings is widespread; employees can record conversations on their laptop, on their mobile telephone or on a dictaphone. Employers should therefore be wary of this.

Am I allowed to discipline my employees if I find they’ve been recording workplace conversations or meetings?

Unauthorised recordings of meetings and/or conversations could be construed to be misconduct by an employer – particularly if such an action is listed as misconduct in the staff handbook or the employee’s contract of employment. If this is the case then there may be good grounds for disciplining the employee. However, employers should be careful to ensure that their treatment of the employee is not unfair and that the proper procedures are followed if disciplinary action does ensue.

Are audio recordings admissible as evidence in the Employment Tribunal?

The prima facie answer to this question is, again, “yes” – audio recordings are admissible as evidence in the Employment Tribunal as they constitute a “document” which, if relevant, can and should be disclosed in proceedings. However, it is good practice for the audio recording to be disclosed to all parties in good time before the Employment Tribunal and for a (accurate and objective) transcript of the audio recording to be provided. It should be noted that the Employment Tribunal has wide discretion to admit or refuse to admit evidence – including audio recordings. Whether the Tribunal allows the evidence to be admitted will depend upon balancing a variety of factors, including the relevance of the evidence, the cost of admitting the evidence, the prejudice to the parties of admitting the evidence, and the general proportionality of admitting the evidence.

Situations in which audio recordings may not be admissible include the following (among others):

  1. If the audio recording was covert and the employee wasn’t present in the room for part of or the whole of a conversation
  2. If the audio recording isn’t relevant to the proceedings
  3. If the admission of the audio recording as evidence would substantially prejudice one or more of the parties; and/or
  4. If the cost of admitting the evidence would outweigh the benefit to any of the parties

What should I do if I’m made aware that there are audio recordings which are potentially relevant evidence in (threatened) proceedings?

If an employer is made aware of the existence of audio recordings which are potentially relevant to (threatened) Employment Tribunal proceedings or proceedings in the civil courts then they should request disclosure of the evidence from the relevant person and transcribe the recording. You should then potentially seek employment law advice from a specialist upon the potential relevance, impact and admissibility of such evidence.

Direct 2 Lawyers can put you in touch with expert employment law solicitors and criminal defence solicitors

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