Beware - Phones have ears!

One of the ‘extras’ you often get with the mobile phones or MP3 players carried by nearly everyone these days is a voice recorder.

Although most of us probably never even look in the manual to see how it works, let alone use it, the voice recorder gives an easy and virtually undetectable means of secretly recording anything said in any situation.

The 2006 EAT case of Chairman and Governors of Amwell View School v Dogherty, found that a recording of a disciplinary hearing and an appeal hearing made by a dismissed employee could be used as evidence in an Employment Tribunal, irrespective of the fact that it was made without the knowledge of the disciplinary panel. The practical advice for the employer’s side here can only be to not say anything in a hearing that you would not want an Employment Tribunal to know you had said.

The same EAT made it plain that any secret recording of the deliberations of the panel in the absence of the employee was not admissible in an Employment Tribunal, as it would inhibit panel members from engaging in open discussion. This is of some comfort, but there is still need for caution. A recording of frank and candid discussion does not have to go to an Employment Tribunal to be problematic to the employer in the hands of an employee. Recent instances have come to light of occasions where, for instance, an employee left her coat hanging in the room of the hearing during the discussions of the disciplinary panel after the main hearing. The managers naturally thought they were speaking privately, whilst the mobile phone in the coat pocket recorded everything said. It may not have been admissible in a Tribunal, but the employee knew what the managers had said and the managers knew that she knew. At very best, such situations are awkward. It would be ridiculous to sweep a room for electronic devices every time an employee exits, but it may not be disproportionate to ask them to take their bag and coat with them.

Another occasion of vulnerability that has arisen is where a manager may decide to have an informal but frank word with someone, as a pragmatic means of addressing a concern. That well-intentioned but no holds barred piece of advice can be thought to be given in complete privacy, but can be going down loud and clear on a memory card via a device deep in a pocket and out of sight. To remove the ‘quiet word’ from management practice would be a gross overreaction, but it is worth remembering, and no exaggeration to say, that you never know when you are being recorded.