It depends on what you plan to use the evidence for and on whether you are still employed.
I am still employed
If you are still in employment and you use the recording and your employer finds out about it, they may commence disciplinary proceedings against you for dishonesty, especially if you have already asked to record the meeting and been told you cannot, but you have done it anyway. You need to tread really carefully here because otherwise you may give your employer good grounds to take action against you.
I have left the organisation
If you have left employment and want to use the recording either to secure a settlement or as part of your Employment Tribunal case, then you can probably be a bit more relaxed about how you deploy the recording as evidence because the risk of dismissal is not there. You still need to proceed with caution, however.
Do I have to tell my solicitor? Yes, you do!
If you are engaging a solicitor to help you with resolving the issues with your employer, it is vital that you tell your solicitor up front that you have this evidence. If you withhold this information from your solicitor, they have good reason to terminate their relationship with you because the solicitor-client relationship is built on trust. If you cannot be candid, they are not obliged to represent you any further.
Is it worth using the evidence? Really worth it…
The first consideration, if you are considering using the recording as evidence, must be to think about how useful it will be. If it evidences some very poor behaviour on the part of management or HR, for example, bullying or harassment, it may be a useful tool in any negotiations, depending on how far it is likely to influence those negotiations. Your solicitor is the best judge of this. You do not want to cause a ruckus over an unauthorised recording unless it is really a good piece of evidence. If it carries little evidential weight, it is unlikely to be worth using, especially in the context of Employment Tribunal litigation.
Can I use it in the Employment Tribunals?
It depends. The party defending any claim from you is likely to object, given the way you obtained the evidence. You will therefore need permission from the Employment Tribunal to adduce (use) this evidence. Tribunals are softening their method to covert recordings with the realisation that in the age of the smartphone, it doesn’t take much effort to record a conversation, and everyone has access to this technology. It will depend on the evidential value – how useful it is – and also on how well you can explain the circumstances in which you decided to record it. Can you justify the recording? Did you know you were going into a hostile meeting where your job was at stake, and did you record the conversation to protect yourself because the company is notoriously bad at conducting meetings fairly? The ET will take all the circumstances and context into account. Their decision will have a bearing on your standing as a witness. If you cannot explain your actions well to their satisfaction, this could impact your witness credibility. If you lied about the recording, have you lied about anything else?
As with many things in the legal process, there is no simple answer, but applying common sense will get you some of the way, along with an abundance of caution.
This blog was written by Elizabeth McGlone, Managing Partner of didlaw.
