4. Covert recordings during the hearing.
Case law has demonstrated that when an employee secretly records a disciplinary hearing or internal meeting with their employer, the recording of any part/s of the meeting where the employee was present may be admissible before an Employment Tribunal. This will be the case if the Tribunal believes the recording is relevant. However, covert recordings of private discussions – for example of the employer’s disciplinary panel during the employee’s absence from the room – will not be admissible on the grounds of public policy other than in exceptional circumstances (such as where discrimination is seemingly uncovered).
From a practical perspective, employers may wish to ensure that their Disciplinary Procedures or Staff Handbook expressly prohibit employees from recording meetings and hearings. Additionally, some employers at the start of an investigatory meeting or disciplinary hearing will inform the employee that they must not record the meeting and ask them to confirm that they are not doing so. These steps may mean that an employee who covertly records might be guilty of misconduct (for which they can be separately disciplined); however, it does not necessarily mean that the recording itself is inadmissible in evidence.