An employee, who brought claims of sexual harassment, sex discrimination and constructive unfair dismissal, has been able to rely on evidence obtained by taking secret recordings of the disciplinary and grievance hearings that took place shortly before they left the company. The recordings included private comments made by the managers while the employee was out of the room, which included an acknowledgment some parts of the grievance had been deliberately overlooked and an explicit and extremely offensive remark.
The employer tried to prevent the secret recordings being used as evidence, but the employment tribunal concluded it was admissible as the comments that were made were outside the employer’s legitimate consideration of the relevant grievance and disciplinary issues. The employers appealed against the first tribunal ruling but the decision has been upheld.
This case is therefore an important reminder that everyday modern technology means that covert recording is no longer confined to the world of James Bond style fiction – remember almost all employees will have a record function on their mobile phones.
Although the extremely offensive nature of the comments is likely to have contributed greatly to enabling this evidence to be admissible, employers should ensure that their managers are reminded that they need to take care in all conversations and times connected to the workplace.