Almost all of us now carry mobile phones capable of making audio recordings. It’s not surprising that, increasingly, TBU is presented with audio files which have been made covertly by members during meetings with their employers.
The majority of these recordings are made on the spur of the moment with no obvious malicious intent by members concerned they might be misrepresented. They want an accurate record of what was said which says a great deal about the lack of trust between the members concerned and their employers. Inevitably, however, some people make covert recordings with the intention of gaining an advantage and entrapping the person they are talking to.
What’s The Legal Position On Covert Recordings?
The issue of covert recordings was considered in a recent case at the Employment Appeal Tribunal (Phoenix House v Stockman), where an employee had made a covert recording of a meeting with her employer. The Judge made the following comments:
“We do not think that an ET (Employment Tribunal) is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation.”
What this means is that in some very specific circumstances, it might be considered acceptable for employees to make covert recordings of meetings, but whether it’s acceptable to record a meeting covertly will be depended on the specific circumstances of the case. The Judge went on to say:
“we consider that it is good practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit frank exchange of views between experienced representatives and members of management.”
The reality is that there are going to be very few circumstances where it is acceptable to record a meeting or conversation at work on a covert basis. Individuals who decide to make covert recordings run the risk of being accused of misconduct, which could result in disciplinary action.
Our Advice To Members
If you’re concerned about being misrepresented, ask for the employer’s permission to record the meeting. If the request is declined, ask your employer to explain why the request is being declined and make a note of the reason you are given. Both employers and employees have to behave reasonably; if there’s no good reason for a meeting not to be recorded but the employer still refuses, that alone casts doubt on the employer’s true motives. If your employer gives you permission to record a meeting, make it clear at the beginning of the recording that you have your employer’s consent.
During the meeting or soon afterwards, make written notes of what’s said so you’re clear what was said to you and by whom. Also make a note of any witnesses to what was said. It’s important that you retain these notes and keep them safe, they could be important evidence at a later stage.
If the employer minutes a meeting, you must read the minutes very carefully and if you disagree with what’s been recorded you must state that in writing as soon as possible and explain why you disagree with what’s been recorded. Objecting to minutes at a later stage in the case can cast doubt over your motives; it’s essential that you review and amend minutes promptly when you receive them. If you need help, ring us before you agree any minutes.
Better still, don’t go in to meetings without us. Make sure that you’re represented by us so that we can ensure you’re treated fairly and you have an independent witness to what was or wasn’t said. If you’re unsure whether you should or can be represented at a meeting, don’t take a chance. Give us a call at any time on 01234 716029. As one member said after a recent investigatory meeting:
“If I had not been supported by the Union, I think the interview would have been very different. The investigator was not happy to wait for my Union Representative, but I am so glad I did.”
The Union’s role is not to obstruct properly carried out investigations: employers have a perfectly legitimate right to investigate suspected wrongdoing. But it is our job to prevent members being duped into making statements that aren’t true, what is known as ‘verballing’ (dictionary definition: “attribute a damaging statement to a suspect, especially dishonestly”) and prevent investigators misrepresenting what is said in the minutes of meetings.
It is the supreme irony that in some cases we have dealt with, the people investigating suspected misconduct and dishonesty have behaved entirely dishonestly themselves! Duping members into attending meetings unaccompanied, on the pretext that they were attending customer interviews or so called ”informal chats” are just two of the devices used to ‘set up’ people under investigation.
The Police and Criminal Evidence Act 1984 and recorded interviews put a stop to police officers verballing suspects. Why should employers operate to a lower standard of honesty?