15 October 2020 - Post by:Rachel Reeves
Are covert recordings permitted?
One of the issues that comes up time and time again concerns employees recording discussions covertly. The issue is particularly relevant now as the opportunities to record while working remotely are even greater than in face to face meetings. The answer is that it is up to an employer whether recording is permitted, and generally the parameters are set out in policies. Covert recording, on the other hand, may be a breach of an employer’s policy and rules, but an employment tribunal may still rule that it is admissible in evidence if it is relevant.
The case reported below will be of interest to employers and employees alike as it is the first time that covert recordings have attracted significant costs awards against the complainant.
C H Tan v Copthorne Hotels Ltd
What started as a standard redundancy dismissal morphed into a dispute involving wide-ranging allegations including unfair dismissal, discrimination, harassment, victimisation and whistleblowing. Mr Tan, who worked as the hotel’s Global Chief Procurement Officer for five years, had his claims dismissed by the employment tribunal because they either failed or were withdrawn. The more surprising consequence of this case is the decision on costs awarded against Mr Tan.
An extraordinary award of £432,000 was made as compared to the average costs award of circa £2,500. This makes it one of the largest costs awards ever made. It was on the basis that, during the disclosure exercise, it was discovered that Mr Tan was:
- ‘prolific in making covert recordings of his colleagues, both peers and those senior to him as well as those junior to him such as the chairman’s driver’
- ‘fully aware that this [hours of recordings] amounted to wrongdoing’
- ‘duplicitous and underhand’
In addition, Mr Tan said in evidence that he ‘had made recordings of people who were not threatening him, but who had come to speak to him in confidence’, which action the Tribunal found to be ‘a wholly unacceptable breach of trust’ which would have led to his dismissal in any event had his employer known about it. The significance of the award reflects the voluminous documents Mr Tan brought before the tribunal, amounting to over 3,000 pages, as well as the fact he was given every opportunity to withdraw from the proceedings.
Take-away message for employers
This is a case at the extreme end of unacceptability because of the volume of recording, those targeted and the underhand way in which it was done. Whilst the employee in this case paid a high price, the facts are unusual. A tribunal judge is likely to be more sympathetic to recordings which provide evidence of discrimination and are relevant to the proceedings, irrespective of whether it was a breach of a policy or not. Employers should:
- make sure that the policies are clear on whether recordings are permitted;
- reiterate the prohibition on recording in any relevant documentation such as invites to disciplinary or grievance meetings;
- assume that covert recordings will be made so that anything said would not be compromising were it to be disclosable in subsequent proceedings; and
- in litigation where it is discovered that covert recordings have been made, remind the complainant and/or their lawyer that these were made without permission, and that a costs order will be sought from the tribunal.