Audio Recordings – Are They Allowed As Evidence?

Audio recordings have become increasingly popular as a form of evidence—especially in front of the Employment Tribunal. Capturing evidence via calls and emails isn’t always possible; hence, secretly recording people seems to be a way forward for many professionals. This is especially since the subject of covert recordings is a legal grey area. 

The Employment Rights Act 1996 has no specific provision regarding covert audio recordings. However, there have been cases where they have been used because of their relevance to the case. Basically, as long as there has been a good reason to record someone, the Tribunal has recognised it as evidence. 

Regular Recordings vs Covert Audio Recordings 

There are no set rules about not recording conversations. Businesses often record conversations with clients as well as employees. However, the difference is, that everyone involved is aware. Moreover, the reason behind it is often record-keeping or quality control, and these recordings are in compliance with the law. 

There are very few instances where it’s okay to record a call without consent. According to Monitoring and Record-Keeping Regulations, recording calls without consent is permissible if it is to establish whether a business is complying with necessary regulations. Additionally, calls can also be recorded without consent if there is a possibility of a crime being committed.  

Even when it comes to face-to-face meetings, there is no rule prohibiting anyone from recording them. The only time it’s technically “allowed” is when it is done by a public body like the police, under RIPA. In every other case, there is no law on covert recordings other than the fact that it can be frowned upon in various organisations. 

Audio Recordings and Gross Misconduct 

Gross misconduct can be anything from ignoring direct orders to downright fraud. Essentially, any action that goes against the values of the company can be considered gross misconduct. Hence, covert recordings are usually frowned upon because of a lack of consent among parties.

And while some contracts of employment may not have a gross misconduct clause, mutual trust and confidence are implied in all. All parties involved in the contract have a duty to not break each other’s trust. And that’s why covert audio recordings are usually looked down upon.

However, just because they are looked down upon, does not mean they cannot be used in a claim. 

What The Tribunal Says 

The Employment Appeal Tribunal (EAT) held in Amwell View School v Doherty that covert audio recordings can be used as evidence. Additionally, in Phoenix House Ltd v Stockman, the Employment Tribunal said that because the claimant had good reason to record, and never intended to trap the employer, it can be considered evidence. This decision was upheld by the EAT as well.

The decision in the Stockman case laid down three factors to consider when taking covert recordings:

  1. Purpose: As seen in the case, one of the only reasons why the ET and EAT allowed the recording as evidence, was because of its purpose. Ms Stockman, the claimant, did not rely on the recording, she merely disclosed it during the trial. It wasn’t the sole evidence in the case and merely an aid. This showed ET and EAT that she had no intention of entrapping her employers. So, it wasn’t seen as gross misconduct.
  2. Culpability: Another point made by the EAT was that Ms Stockman was never told she cannot record. So in order for it to be misconduct, there has to be a preliminary foundation laid out about what is and isn’t allowed. 
  3. Subject Matter: For it to be misconduct, the recording would have to have information that’s more worthy of a breach. If it is things that could be shared generally, like in the Phoenix House case, then it cannot be used to entrap the employers. And hence, cannot be considered gross misconduct. 

Another interesting case is the Punjab National Bank (International) Ltd and others v Gosain. In this case, the ET extends the scope of admissibility by stating that covert recordings of private meetings are admissible as evidence. This is provided that the subject matter of the recordings is relevant to the claims.

Final Thoughts 

Covert audio recordings have their own pros and cons, depending on what side of the story you’re on. As a general rule, it is best to stay away from this legal grey area as there is no telling where it can take you. However, should you find yourself with a recording, it’s best to speak to an employment law specialist