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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My wife has taken out a grievance against her line manager.

Resolved Question:

My wife has taken out a grievance against her line manager. She is due to attend the internal grievance meeting shortly.
She made a recording of her most recent appraisal with this line manager. The recording demonstrates some of the matters she is complaining about: promises being made but not kept; unjust criticism of performance against ill defined objectives; the manner of communication.
She is hoping that the grievance can be resolved in a positive way that allows her to continue working at the company.
Her questions are as follows:
(i) Is it legal for her to have made the secret recording
(ii) Can the recording be introduced as evidence into the grievance process, provided that the line manager gives his consent
(iii) Can the company dismiss my wife because she made a secret recording
(iv) Do employment tribunals consider evidence collected in this way
Thank you Pat
Submitted: 2 years ago.
Category: 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. How long has she worked there for?

Customer:

Hi 7 years

Ben Jones :

Hi, sorry I was offline by the tie you had replied. 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. As such, try not to keep any recordings that contain such information.

The second issue is to do with the intended use of the recording. If this is to be used as evidence in court, whilst the court retains the final authority on whether it should be allowed as evidence, certain principles exist and can be considered in advance.

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.

So whether a court would allow the use of a secret recording very much depends on the contents of the recording and the nature of the meeting that was being recorded. As long as there is no illegal recording of personal data about others and the conversation that was recorded was not part of private deliberations about the issues at hand, there is a good argument that their use as evidence should be allowed.

As to any potential dismissal, unless she has broken any specific rules prohibiting such recordings and this was classed as gross misconduct, then it is unlikely the employer can fairly dismiss her. As discussed above making such recordings s not illegal so it depends on whether the employer had their own policy on prohibiting such actions, although even if they did it may not necessarily be serious enough to justify dismissal of someone with 7 years;’ service.

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

Customer:

Hi Ben that is great thanks. Thanks for your help with this

Ben Jones :

you are welcome, all the best

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46763
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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