Covert recordings are becoming an increasingly common feature of workplace disputes. Often it is not until a dispute has been escalated to a Tribunal complaint that an employer even becomes aware that one was made. An employer’s immediate reaction may be one of anger. Has there been a breach of trust? Should disciplinary action be taken? Should this have been picked up earlier?

Whilst these are all legitimate questions, there may be another, more worthwhile question for an employer to ask itself:

Why did the employee feel that a covert recording was necessary in the first place?

There can be many explanations as to an employee’s decision to covertly record a meeting or discussion:

• The employee wants a precise record of what was said;
• The employee is concerned about how they will be treated;
• The employee is concerned that a handwritten note will not accurately or impartially capture the meeting;
• The employee believes it is the only way they can evidence their version of events;
• They have been advised to do so (most likely by an AI chatbot!).

All of the reasons above indicate a lack of trust. Indeed, a covert recording often indicates a significant breakdown of trust and confidence between employee and employer and should be taken seriously. It is important for an employer to keep in mind that often the reason for the covert recording may be more important than the recording itself.

What can employers do to reduce the risk?

There is no way to entirely eliminate the risk of covert recordings being taken, however there are steps that can be taken to help mitigate this risk.

A clear process is the best starting point. Employees should be made aware at the outset of a disciplinary or grievance procedure how meetings will be conducted, how notes will be taken and how any inaccuracies can be challenged. Whilst it is no doubt set out in policy documents, a brief discussion with the employee at the outset can be invaluable in ensuring that everybody sets out on the same page.

Uncertainty as to disciplinary or grievance meetings can increase anxiety and suspicion, driving an employee to feel compelled to covertly record a meeting for fear of what may be sprung on them. Wherever possible and appropriate, employees should understand why a meeting is taking place, what issues will be discussed and what procedure said meeting falls under. Consideration should also be given to the amount of notice an employee is given – unnecessarily short notice, or no notice at all, may increase paranoia.

Where a note of the meeting is recorded by hand, best practice suggests that these should be typed up and agreed by all parties as close to the meeting as possible. This ensures that discussions are still fresh in an individual’s mind and any challenges can be discussed in a reasonable and constructive manner, reducing disagreement as to what was said at a later date. Where an employee does not receive meeting notes for a prolonged period, during which they have had time to go over what was said and what should have been said (and perhaps conflate the two), this can cause distrust and increase the likelihood of further meetings being covertly recorded. Ultimately, an employer may wish to consider if it is easier for all parties to agree to a recording prior to the meeting to avoid a “he said, she said” situation.

A poorly handled disciplinary or grievance meeting can quickly undermine trust. Managers should be trained in conducting difficult conversations in the appropriate forum. Employers must remember that employees facing disciplinary action or progressing a grievance may be under considerable stress and one size rarely fits most, let alone all.

Finally, an employer’s policy documents should be clear as to the recording of meetings and how these will be treated if it transpires a covert recording has been taken. A recording policy should be viewed as part of a wider approach – you can have a perfectly drafted policy prohibiting covert recordings, but if employees believe that meeting notes are routinely inaccurate or that their concerns are not being heard, a policy will do little to address this underlying problem.

Whilst it may be appropriate to address the recording itself, employers should also take the opportunity to consider why the employee felt it was necessary to do so. A clear process, effective communication, accurate record-keeping and properly trained managers can all help to build trust and reduce the perceived need for employees to create their own record of events. Ultimately, a covert recording may be more than simply evidence of a workplace dispute; it may be a warning sign that trust and confidence within the employment relationship has already begun to break down.

Lizzie Beard is an associate advocate in M&P Legal’s employment team. This article should not be construed as legal advice, please take specific advice on the facts of any particular case.

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