Employers need to adapt to the rise of wearable technology

One of the potential pitfalls is the covert recording of internal meetings such as grievance or disciplinary meetings. Employees have previously recorded meetings using mobile phones which, when hidden inside a pocket, produce muffled and barely usable recordings. A recording from the Apple Watch is, however, likely to be much clearer. To ensure that employers are sufficiently protected they must evolve their practices to deal with this changing technological landscape.

Can covert recordings be used by employees?

It is well established that covert recordings of grievance or disciplinary meetings may be admissible as evidence before an Employment Tribunal. One of the key reasons why recordings are considered by Tribunals, and why they can be damaging for an employer, is that unlike written minutes the tone used can be ascertained.

The general rule is that a recording is admissible if it records a meeting at which the employee is present, whereas a recording of the employer’s private discussions regarding the meeting is not i.e. during an adjournment. There are, however, exceptions to this rule and if comments made by the employer during private discussions go beyond ‘mere deliberations’ on the matters under consideration and do not form part of the employer’s decision making, these comments may be admissible.

The recently reported settlement of a sexual discrimination and harassment claim brought against Goldman Sachs highlighted the use of covert recordings. Ms Pereiro-Mendez covertly filmed a number of her colleagues and whilst we do not know what the film showed, inference can be drawn from reports that the settlement was for around £1 million.

What can employers do?

With regard to grievance or disciplinary meetings employers can ask employees to leave outside of the room all phones, watches and any other technological item capable of recording. However, this is a fairly heavy handed approach and can be difficult to police.

Employers can also amend policies to explicitly exclude employees from recording any grievance or disciplinary meeting, and ask the employee to confirm they are not recording at the start of the meeting. This may serve as a valuable deterrent to employees however obtaining an employee’s confirmation that they have adhered to the policy will not prevent the recording being admissible as evidence before a Tribunal.

A more practical step to protect against the threat of covert recordings is to tackle the problem head on and formally record such meetings. This can be arranged at relatively little expense and prevents any dispute over the content of the meeting, particularly if the matter escalates to Tribunal. It can also encourage those holding grievance/disciplinary meetings to be more proactive in preparing for such meetings and to be aware of the tone used throughout the meeting; nothing should be said that the employer would not want to be heard by a Tribunal.

Merrill April

Information contained in this post does not constitute legal advice and is provided for informational purposes only. Recipients should not act upon it, but should seek legal advice relevant to their own situation.