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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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If an employee records an investigative interview without informing

Resolved Question:

If an employee records an investigative interview without informing the interviewer can this be produced as evidence.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Where does the employee want to use this as evidence?
Customer:

Ben,

Customer:

I am employed as a regional loss prevention manager. I conducted an investigation into an employee and completed contemp notes which the employee signed. He has now submitted a grievance citing me. I have been served the papers outlining his complaint, he states he used a dictaphone to record the interview and wants to use this as evidence. Under employment law can he use this and or does the company have to acept it.

Customer:

I forgot to add that he did not make me aware he was recording the interview and did it covertly.

Ben Jones :

Thanks and just to clarify - what was said at the meeting which he is using against you in the grievance?

Customer:

Ben,

Customer:

I interviewed him regarding the allegation against him.

Customer:

This individual is a friend, and during the interview asked me "what would i do if you were me". I informed them that i would resign and go with my integrity intact as if it went to a disciplinary there were 3 outcomes; dismissal, no action, some sort of disciplinary action but adding that the decision was his not mine. I also advised that if the company asked me to report to the Police he could be arrested. He is alleging i threatened him with dismissal, the Police and arrest and that i was intimidating. As he asked me not in context of the interview and as a friend i gave him my personal view. He is now alleging that this conversation should have been recorded.

Ben Jones :

It is not illegal to secretly record meetings between individuals. Whether any legal issues arise as a result depends on the contents of the conversation being recorded and how the recording is to be used.

The first issue is in relation to third party confidentiality. The Data Protection Act 1998 (DPA) applies to situations involving the processing of personal data. If the recording deliberately or accidentally records personal data about a third party, then its use could be restricted by the DPA. However, there appears to be no data protection issue in this case.

The second issue is to do with the intended use of the recording. Case law mainly deals with the use of such recordings as evidence in court but the same principles would apply if it was just to be used internally.

The leading case is that of Dogherty v Chairman and Governors of Amwell School. Mrs Dogherty, a teacher in the school, had made secret recordings of an "open" disciplinary meeting that she was subjected to and the subsequent "private" appeal meeting, held in her absence. She then tried to use these recordings as evidence in her claim for unfair dismissal against the school.

The Employment Appeal Tribunal decided the following:



  • The contents of the "open" disciplinary hearing were capable of being secretly recorded as it was directly relevant to the teacher's claim

  • The recording of the "private" appeal hearing was not admissible as evidence. As this was conducted in private, it was not directly relevant to the claim.


A more recent case is that of Punjab National Bank v Gosain, where an employee covertly recorded private discussions made by the employer as part of a grievance and disciplinary hearing. The employer may inappropriate remarks about the employee and the Employment Appeals Tribunal decided that this is admissible evidence as the comments did not form part of the deliberation process of the grievance and disciplinary.

It is therefore quite likely that the recording was not illegal and could be used by the employee to raise a grievance. Still, it is now for the employer to determine whether there are any grounds to take this further

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Ben,

Customer:

Thanks for the feedback it is much appreciated.

Ben Jones :

you are welcome

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46207
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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