Employees doing things that they shouldn’t with mobile phones isn’t uncommon. This includes making a covert recording of a meeting without permission.

Cases of the covert recording of a disciplinary hearing regularly come before Employment Tribunals.

A disciplinary hearing should only be recorded by one party if the other party agrees to it – but that does not stop it being done in secret or from being presented in Employment Tribunals as evidence.

A recent case involved Mr Fleming. He secretly recorded the deliberations of the disciplinary panel when he had been asked to leave the room whilst they held discussions. He claimed he had inadvertently left his phone in the room recording.

the Trust are understandably rather sceptical about that

The Claimant listened to the recording shortly afterwards and took the decision based on what he heard that he would no longer participate in the internal process.

Mr Fleming was dismissed some days after the hearing. He claimed that he was dismissed unfairly and wanted to rely on his recording of the deliberations. The Employment Judge in the Tribunal would not admit the evidence, saying that it was legally privileged. Mr Fleming appealed on this point to the Employment Appeal Tribunal.

Mr Fleming said that he had inadvertently left his phone in the room recording during the disciplinary panel’s deliberations. During the deliberations, the panel members phoned their solicitors for advice. The EAT ruled that recordings of those phone calls and the discussions of the legal advice were legally privileged. However, the other discussions between panel members were not.

The EAT ruled that the public interest in allowing private deliberations was outweighed by the public interest in the evidence being heard when it had led to the Claimant being dismissed without him taking any further part in the process.

What should employers do?

  • Secret recordings can and do end up being presented in evidence, even if it reflects badly on the Claimant.
  • If you do not want a hearing recorded and you think that the employee may be doing so, you can ask at the start of the hearing if they would clarify that they are not making an audio recording. There is then a choice between coming clean or continuing in secret and later having it known that they have been dishonest.
  • If you are in any doubt during deliberations whilst the employee is out of the room – because a coat or bag has been left behind – consider adjourning to another room if possible.

We can help reduce the risk of a Tribunal claim. You can read more about dismissing an employee or the grievance and disciplinary process.

Call us for free on 08000 614 631.

FREE first advice

Have you ever wanted to just ask an expert employment law solicitor if they can help you, without worrying about what it may cost to contact them?

Get in touch

We’d like to talk to you to see what we can do to help, so please either call us anytime for free on 08000 614 631, email us or use the form below.

Together we can work out what your next steps might be...in confidence, at no cost and with no obligation.


* indicates required
McCabe and Co Solicitors will use the information you provide on this form to be in touch with you and to provide updates and marketing. Please let us know all the ways you would like to hear from us:
You can change your mind at any time by clicking the unsubscribe link in the footer of any email you receive from us, or by contacting us at philip@mccabeandco.com. We will treat your information with respect. For more information about our privacy practices please visit our website. By clicking below, you agree that we may process your information in accordance with these terms.
We use Mailchimp as our marketing platform. By clicking below to subscribe, you acknowledge that your information will be transferred to Mailchimp for processing. Learn more about Mailchimp's privacy practices here.