Evidence gathering in employment disputes: Making audio & video recordings

Should I record the conversation?

One of the questions that we are asked regularly is “Should I record the conversation?”. This is entirely up to you, but you may not be able to rely on it in the future if no one knows you are making a recording. Some employment tribunals will allow secretly recorded evidence to be heard in a hearing, others will not. It rather depends on the circumstances of the recording and the relevance of the evidence on the recording to the proceedings.

The same applies to negotiations as in tribunals: an employer is not going to want to hear a recording of a disciplinary hearing or grievance meeting you have made covertly when it has an HR representative taking notes. This is because the notes protect the employer and also because the employer will feel undermined that you have made a recording without its knowledge.  Often recordings made in meetings don’t uncover much,  as people are on their best behaviour on such occasions and also may expect a recording device to be present.

On the other hand, sometimes recordings of meetings can show bad behaviour, for example, an aggressive approach by your line manager, especially when there is no HR representative present, and the top brass might be very interested to hear one of their managers shouting at a member of their staff.

Where recordings are of real value is when they uncover evidence of serious wrongdoing such as discriminatory harassment. In such cases, an employer will almost be duty-bound to hear/watch it and an employment tribunal would most likely allow the recording to be admitted as evidence to the hearing if the claim is disputed. Importantly, if you have an audio or video recording of you being discriminated against or treated unfairly, you can, subject to compliance with RIPA (see below), disclose them to your employer as evidence to support your case in negotiation.

Having said that,  covert recordings undermine trust, so deploy them only when you really have to.

Recording telephone and video calls

A word of caution if you want to record any form of electronic communication such as telephone calls and video calls.  If you do this then you must comply with the Regulation of Investigatory Powers Act 2000 (“RIPA” – The Terrorism Act) and the Data Protection Act 1998 (“DPA”).

Under RIPA it is an offence (potentially a criminal office) to intercept or record telephone calls in order to make the call available to a person other than the sender or intended recipient, if the persons on the call have not given their consent. It is not illegal under RIPA to record the call for your own use only, even if the other person/people on the call haven’t given their consent.

This means that, if you record telephone and/or video calls without your employer’s knowledge, you can record them as long as you do not reveal the recording to anyone else. You may refer to the call in future negotiations and quote from the call, but you cannot disclose the recording.

Be very careful when recording calls as you may find yourself in breach of the law.